[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


   H.R. 3797, THE SATISFYING ENERGY NEEDS AND SAVING THE ENVIRONMENT 
 (SENSE) ACT; AND H.R. ___, THE BLOCKING REGULATORY INTERFERENCE FROM 
                       CLOSING KILNS (BRICK) ACT

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON ENERGY AND POWER

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 3, 2016

                               __________

                           Serial No. 114-113


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov
                        
                        
                                ___________
                                
                                
                         U.S. GOVERNMENT PUBLISHING OFFICE
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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                          
                                 Chairman
JOE BARTON, Texas                    FRANK PALLONE, Jr., New Jersey
  Chairman Emeritus                    Ranking Member
ED WHITFIELD, Kentucky               BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois               ANNA G. ESHOO, California
JOSEPH R. PITTS, Pennsylvania        ELIOT L. ENGEL, New York
GREG WALDEN, Oregon                  GENE GREEN, Texas
TIM MURPHY, Pennsylvania             DIANA DeGETTE, Colorado
MICHAEL C. BURGESS, Texas            LOIS CAPPS, California
MARSHA BLACKBURN, Tennessee          MICHAEL F. DOYLE, Pennsylvania
  Vice Chairman                      JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana             G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington   KATHY CASTOR, Florida
GREGG HARPER, Mississippi            JOHN P. SARBANES, Maryland
LEONARD LANCE, New Jersey            JERRY McNERNEY, California
BRETT GUTHRIE, Kentucky              PETER WELCH, Vermont
PETE OLSON, Texas                    BEN RAY LUJAN, New Mexico
DAVID B. McKINLEY, West Virginia     PAUL TONKO, New York
MIKE POMPEO, Kansas                  JOHN A. YARMUTH, Kentucky
ADAM KINZINGER, Illinois             YVETTE D. CLARKE, New York
H. MORGAN GRIFFITH, Virginia         DAVID LOEBSACK, Iowa
GUS M. BILIRAKIS, Florida            KURT SCHRADER, Oregon
BILL JOHNSON, Ohio                   JOSEPH P. KENNEDY, III, 
BILLY LONG, Missouri                     Massachusetts
RENEE L. ELLMERS, North Carolina     TONY CARDENAS, California
LARRY BUCSHON, Indiana
BILL FLORES, Texas
SUSAN W. BROOKS, Indiana
MARKWAYNE MULLIN, Oklahoma
RICHARD HUDSON, North Carolina
CHRIS COLLINS, New York
KEVIN CRAMER, North Dakota
                    Subcommittee on Energy and Power

                         ED WHITFIELD, Kentucky
                                 Chairman
                                 
PETE OLSON, Texas                    BOBBY L. RUSH, Illinois
  Vice Chairman                        Ranking Member
JOHN SHIMKUS, Illinois               JERRY McNERNEY, California
JOSEPH R. PITTS, Pennsylvania        PAUL TONKO, New York
ROBERT E. LATTA, Ohio                ELIOT L. ENGEL, New York
GREGG HARPER, Vice Chairman          GENE GREEN, Texas
DAVID B. McKINLEY, West Virginia     LOIS CAPPS, California
MIKE POMPEO, Kansas                  MICHAEL F. DOYLE, Pennsylvania
ADAM KINZINGER, Illinois             KATHY CASTOR, Florida
H. MORGAN GRIFFITH, Virginia         JOHN P. SARBANES, Maryland
BILL JOHNSON, Ohio                   PETER WELCH, Vermont
BILLY LONG, Missouri                 JOHN A. YARMUTH, Kentucky
RENEE L. ELLMERS, North Carolina     DAVID LOEBSACK, Iowa
BILL FLORES, Texas                   FRANK PALLONE, Jr., New Jersey (ex 
MARKWAYNE MULLIN, Oklahoma               officio)
RICHARD HUDSON, North Carolina
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)
  
                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Ed Whitfield, a Representative in Congress from the 
  Commonwealth of Kentucky, opening statement....................     1
    Prepared statement...........................................    16
Hon. Jerry McNerney, a Representative in Congress from the State 
  of California, opening statement...............................    17
Hon. Bill Johnson, a Representative in Congress from the State of 
  Ohio, opening statement........................................    18
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................    20
    Prepared statement...........................................    21
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    96

                               Witnesses

Keith J. Rothfus, A Representative in Congress from the 
  Commonwealth of Pennsylvania...................................    22
    Prepared statement...........................................    25
Vincent Brisini, Director, Environmental Affairs for Olympus 
  Power..........................................................    29
    Prepared statement \1\.......................................    32
Dennis Beck, Chairman, Western Pennsylvania Coalition for 
  Abandoned Mine Reclamation.....................................    38
    Prepared statement...........................................    40
John Walke, Senior Attorney and Clean Air Director, Natural 
  Resources Defense Council......................................    46
    Prepared statement...........................................    48
Davis Henry, President and CEO, Henry Brick......................    61
    Prepared statement \2\.......................................    64
Creighton ``Butch'' McAvoy, President, McAvoy Brick Company......    68
    Prepared statement...........................................    71

                           Submitted Material

H.R. 3797........................................................     3
Blocking Regulatory Interference from Closing Kilns (BRICK) Act..    13
Statement of the United States Environmental Protection Agency...    98

----------
\1\ The addendum to Mr. Brisini's testimony is available at: 
  http://docs.house.gov/meetings/if/if03/20160203/104366/hhrg-
  114-if03-wstate-brisiniv-20160203.pdf.
\2\ The addendum to Mr. Henry's testimony is available at: http:/
  /docs.house.gov/meetings/if/if03/20160203/104366/hhrg-114-if03-
  wstate-henryd-20160203-u2.pdf.]

 
   H.R. 3797, THE SATISFYING ENERGY NEEDS AND SAVING THE ENVIRONMENT 
(SENSE) ACT; AND H.R. ------, THE BLOCKING REGULATORY INTERFERENCE FROM 
                       CLOSING KILNS (BRICK) ACT

                              ----------                              


                      WEDNESDAY, FEBRUARY 3, 2016

                  House of Representatives,
                  Subcommittee on Energy and Power,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:04 a.m., in 
room 2123 Rayburn House Office Building, Hon. Ed Whitfield 
(chairman of the subcommittee) presiding.
    Members present: Representatives Whitfield, Shimkus, Latta, 
Harper, McKinley, Johnson, Long, Ellmers, Flores, Mullin, 
McNerney, Engel, Green, Doyle, Welch, Loebsack, and Pallone (ex 
officio).
    Staff present: Will Batson, Legislative Clerk, E&P, E&E 
Allison Busbee, Policy Coordinator, Energy and Power; Rebecca 
Card, Assistant Press Secretary; A.T. Johnston, Senior Policy 
Advisor; Ben Lieberman, Counsel, Energy & Power; Mary Neumayr, 
Senior Energy Counsel; Annelise Rickert; Legislative Associate; 
Dan Schneider, Press Secretary; Christine Brennan, Minority 
Press Secretary; Jeff Carroll, Minority Staff Director; Jean 
Fruci, Minority Energy and Environment Policy Advisor; Caitlin 
Haberman, Minority Professional Staff Member; Rick Kessler, 
Minority Senior Advisor and Staff Director, Energy and 
Environment; Josh Lewis, Minority EPA Detailee; and Alexander 
Ratner, Minority Policy Analyst.

  OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN 
           CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

    Mr. Whitfield. I would like to call the hearing to order 
this morning and I would like to recognize myself for 5 minutes 
for an opening statement.
    The Obama EPA has been particularly aggressive in issuing 
regulations and, of course, many of those regulations are 
beneficial. But at the same time, many of those regulations 
create job loss and obstacles to economic growth. And today we 
are going to be discussing two bills making targeted changes to 
EPA rules in order to avoid what we consider are adverse 
consequences: H.R. 3797, the Satisfying Energy Needs and Saving 
the Environment Act, referred to as the SENSE Act, and H.R., 
which I guess we don't have a number for this yet, the Blocking 
Regulatory Interference from Closing Kilns, or BRICK Act.
    Now, the SENSE Act was introduced by Rep. Keith Rothfus of 
Pennsylvania, who is with us today, and his bill addresses an 
issue of great concern in western Pennsylvania and other coal-
mining regions around the country and that is the recycling of 
massive piles of coal refuse that were generated many years ago 
and continue to be located in many of these communities. Coal 
refuse is the above-ground waste product of coal mining found 
near many abandoned mine sites. Left unaddressed, coal refuse 
contributes to a number of environmental challenges such as 
acid mine drainage that may impact rivers and streams. Coal 
refuse from these abandoned mines can also spontaneously 
combust, creating fires that are difficult sometimes to put 
out.
    Fortunately, there is an economically viable solution that 
benefits the environment while reclaiming acres of land and 
disposing of the coal refuse. Specialized power plants have 
been developed that can use coal refuse to produce electricity, 
and they are doing that today. These coal refuse-to-energy 
facilities not only reduce the volumes of coal refuse, but the 
resultant ash is environmentally beneficial and can then be 
used for site remediation.
    However, the continued operation of these plants is in 
jeopardy by the EPA's Cross-State Air Pollution Rule and the 
agency's Mercury and Air Toxics Standard, also commonly 
referred to as Utility MACT. As written, these two EPA rules 
may cause the shutdown of coal refuse-to-energy plants and put 
a stop to the only economically proven means of addressing this 
issue. Members of this subcommittee have raised concerns with 
EPA regulators about the potential impact of the rules. I know 
that Congressman Rothfus has spent a great deal of time on it. 
And so we have been talking to EPA, asking for their assistance 
and, unfortunately, to this point they have simply ignored 
everything that we said.
    Now, the BRICK Act, as the name implies, addresses a BRICK 
industry regulation and I would like to thank Bill Johnson for 
his work on this draft bill. Last September, EPA finalized its 
national emission standards for hazardous air pollutants for 
brick and structural clay products manufacturing, commonly 
called Brick MACT. This rule contains ultra stringent new 
emission targets, and in fact it used as a baseline EPA's 2003 
Brick MACT rule which already reduced industry emissions by 95 
percent, according to a recent report. It should be noted that 
those 2003 Brick MACT standards were vacated by a federal court 
in 2007. But as in so many EPA regulations where suits are 
filed and the complainants win, the money is already spent.
    The effort to comply has already been taken and so it is 
too late for a practical relief for these people, and that's 
precisely where the brick industry is finding itself today.
    So I look forward to additional discussion. We have two 
panels of witnesses today about these practical common sense 
bills and hopefully we can provide some relief to these 
industries as they try to protect jobs, help economic growth 
and to expand their industries.
    [H.R. 3797 follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    [Blocking Regulatory Interference from Closing Kilns 
(BRICK) Act follows:]

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 

    [The prepared statement of Mr. Whitfield follows:]

                Prepared statement of Hon. Ed Whitfield

    The Obama EPA has issued numerous regulations impacting 
manufacturers and energy producers, and many of us are 
concerned about their impact on the economy and jobs. In 
particular, a few of these rules are extremely troubling, such 
as the ones that may cause more environmental harm than good 
and those that may force small businesses to shut down. Today, 
we will discuss two bills making targeted changes to EPA rules 
in order to avoid these adverse consequences, H.R. 3797, the 
Satisfying Energy Needs and Saving the Environment (SENSE) Act, 
and H.R. ------, the Blocking Regulatory Interference from 
Closing Kilns (BRICK) Act.
    The SENSE Act was introduced by Rep. Keith Rothfus of 
Pennsylvania who we welcome to this subcommittee. His bill 
addresses an issue of great concern in Western Pennsylvania and 
other coal-mining regions, and that is the recycling of massive 
piles of coal refuse that were generated many years ago and 
continue to be located in many of these communities. Coal 
refuse is the aboveground waste products of coal mining found 
near many abandoned mines. Left unaddressed, coal refuse 
contributes to a number of environmental challenges such as 
acid mine drainage that may impact rivers and streams. Coal 
refuse from these abandoned mines can also spontaneously 
combust, creating massive fires that are difficult to put out.
    Fortunately, there is an economically viable solution that 
benefits the environment while reclaiming acres of land and 
disposing of the coal refuse. Specialized power plants have 
been developed that can use coal refuse to produce electricity. 
These coal refuse-to-energy facilities not only reduce the 
volumes of coal refuse, but the resultant ash is 
environmentally beneficial and can then be used for site 
remediation.
    However, the continued operation of these plants is 
jeopardized by the EPA's Cross State Air Pollution Rule (CSAPR) 
and the agency's Mercury and Air Toxics Standards (MATS), also 
commonly referred to as Utility MACT. As written, these two EPA 
rules may cause the shutdown of coal refuse-to-energy plants 
and put a stop to the only economically proven means of 
addressing coal refuse. Members of this subcommittee have 
raised their concerns with EPA regulators about the potential 
impact of these rules and on the need to treat coal refuse-to-
energy facilities as a separate sub-category, but these 
concerns were ignored.
    The SENSE Act contains limited modifications to these rules 
as they apply to coal refuse-to-energy plants. Specifically, 
the bill provides less restrictive sulfur dioxide emissions 
allocations under the Cross State Air Pollution Rule, and 
creates an alternative means of compliance under the Mercury 
and Air Toxics Standards. In neither case would the bill repeal 
the provisions in these rules nor jeopardize the continued 
declines in the emissions regulated under them. But they would 
enable these coal refuse-to-energy facilities to continue 
operating and providing both electricity and environmental 
benefits to the communities they serve.
    The BRICK Act, as the name implies, addresses a brick 
industry regulation, and I would like to thank Bill Johnson for 
his work on this draft bill. Last September, EPA finalized its 
National Emission Standards for Hazardous Air Pollutants for 
Brick and Structural Clay Products Manufacturing, commonly 
called Brick MACT. This rule contains ultra-stringent new 
emissions targets, and in fact it used as a baseline EPA's 2003 
Brick MACT rule which already reduced industry emissions by 95 
percent, according to a recent Chamber of Commerce report. It 
should be noted that those 2003 Brick MACT standards were 
vacated by a federal court in 2007, but by the time the 
decision was handed down the industry had already undertaken 
expensive compliance measures.
    We want to make sure that this vulnerable industry does not 
face the same unfair situation for a second time. Compliance is 
especially challenging given that the brickmaking industry is 
dominated by small companies that lack the resources to install 
the costly new controls that are required. Many operators fear 
shutdowns and layoffs, and all to ratchet down already-low 
emissions by a very small amount. That is why the BRICK Act 
extends the compliance dates for these rules until after all 
judicial review is completed. This reasonable provision will 
prevent EPA from again imposing costly requirements that may 
later be found to be outside the agency's authority.
    Both the SENSE Act and the BRICK Act provide specific 
solutions to specific problems created by EPA rules that 
directly threaten the continued operation of businesses in 
these important sectors of our economy. These targeted 
provisions will be a net plus for the environment as well as 
the economy and jobs in many small communities. I urge all my 
colleagues to support these commonsense measures and I look 
forward to hearing the testimony from our witnesses today.

    Mr. Whitfield. With that, at this time I would like to 
recognize the gentleman from California, Mr. McNerney, for his 
5-minute opening statement.

 OPENING STATEMENT OF HON. JERRY MCNERNEY, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. McNerney. Well, I thank the chairman and I thank the 
witness colleague. Today's hearing focuses on a couple of 
bills, the BRICK Act and the SENSE Act, that are a familiar 
effort to weaken the Clean Air Act.
    Mr. Chairman, well thought out regulations make businesses 
more competitive and protect American people. These bills echo 
what we saw, for example, with the Ratepayer Protection Act, a 
partisan effort to weaken the Clean Air Act.
    Addressing air quality is a health and economic issue. Poor 
air quality can disrupt businesses, individuals, and families 
who have to live with its consequences. It is irresponsible and 
morally bankrupt to needlessly delay a rule from taking effect 
that will improve air quality, especially if the intent is to 
delay it indefinitely. The bills under consideration simply 
seek to maintain the status quo. Well, the status quo isn't 
good enough. Our country can do better than that.
    I represent part of the San Joaquin Valley, which is also 
called the famed Central Valley of California. But, 
unfortunately, it has some of the worst air quality in the 
nation. Employees miss work, children miss school days and the 
elderly are often encouraged to stay inside on certain days. We 
have seen the air quality improve over the last decade, which I 
am happy to say I have experienced. But we are still living in 
poor air. I have seen firsthand the effect of pollution on our 
communities. Valley air quality is affected from a variety of 
sources--from China, from in-state and out-of-state vehicles, 
from drought, as well as from pollutions drifting in from other 
parts of the state and from other states. That is not to 
mention unforeseen incidents like the methane leak that has 
been releasing millions of pounds of methane per day in 
southern California.
    Our region has worked hard and taken steps to help address 
one of the biggest issues facing the valley. Recent 
improvements have produced significant economic and health 
benefits. But there is still an enormous amount of work to be 
done. Having worked in the private sector and an emerging 
field, I understand the difficulties that come with raising 
capital and business targets that are always moving around.
    But these advancements take time and investments. Sticking 
with the status quo is not and will never be a solution. Fossil 
fuels will remain an important bridge of energy source as our 
country moves forward to cleaner energy sources. But as we move 
forward, we should maintain focus on making carbon energy 
production as clean as possible through technology and 
effective use of regulation.
    The EPA has used the Clean Air Act to improve the lives of 
millions of Americans and reduce harmful emissions. The Clean 
Air Act has worked and we should continue building on this 
landmark legislation, not slowly dismantle it. And by the way, 
I suggest that my colleagues embrace carbon sequestration. With 
that, I would like to recognize my colleague from Pennsylvania, 
Mr. Doyle.
    Mr. Doyle. I want to thank my friend for yielding time. I 
also want to thank Congressman Rothfus from my home state for 
appearing before our committee today and for his work on this 
important issue. I have seen these coal refuse piles first hand 
and I have witnessed significant benefit processing waste coal 
can provide to these sites.
    Our State, Pennsylvania, is home to nearly three-quarters 
of the active coal refuse power plants in the country. There 
are more than 5,000 coal refuse sites that cover approximately 
184,000 acres throughout our state and pose a significant 
threat to local habitats and communities.
    As many of you on this committee know, I'm an all-of-the-
above guy when it comes to our energy portfolio and coal refuse 
power plants provide an additional benefit in that they improve 
the local environment. I think they are an important part of 
Pennsylvania's power system and help ensure we are good 
stewards of our land and water. This bill would certainly help 
ensure their continued use in years to come. I would note to my 
colleagues that this bill is also significantly improved from 
previous versions.
    Cleaning up these waste coal piles is a major priority for 
our state and we need to figure this difficult problem out. 
However, I also want to ensure that we are protecting our air, 
not playing favorites when it comes to picking power sources 
and preserving important regulations in the regulatory process.
    I still have some remaining concerns on aspects of these 
bills. But I want to thank Congressman Rothfus for highlighting 
the importance of this pressing issue for Pennsylvania that is 
before our committee today, and I yield back.
    Mr. Whitfield. The gentleman yields back.
    At this time, Mr. Upton is not here so I would like to 
recognize the gentleman from Ohio, the author of the BRICK Act, 
Mr. Johnson, for 5 minutes.

  OPENING STATEMENT OF HON. BILL JOHNSON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Mr. Johnson. Well, thank you, Mr. Chairman, for holding 
this very important hearing today to examine both the 
legislation that my colleague, Mr. Rothfus, has introduced and 
the BRICK Act, a discussion draft that addresses the EPA's 
national emissions standards for the brick and structural clay 
products manufacturing industry, which was finalized last 
September 24th of 2015. Simply put, the BRICK Act would allow 
for the consideration and completion of any judicial review 
regarding the EPA's emission standards for the brick industry 
before requiring compliance.
    Mr. Chairman, I want to take just a moment to illustrate 
how the EPA's new regulation will affect the industry and why 
the BRICK Act is so desperately needed. The majority of U.S. 
brick plants are small family-owned operations. They are often 
located in small communities that depend on the plant for good-
paying jobs. Whitacre Greer Brick, located in Alliance, Ohio, 
is just such a company that fits that description. Whitacre 
Greer employs 75 people, offers education and training benefits 
and health insurance to its employees. To comply with the EPA's 
requirements, Whitacre Greer will be forced to borrow millions 
of dollars to pay for the required control equipment.
    Many brick companies are already struggling to find the 
capital for plant modernization projects. I can't imagine how 
difficult it will be for these companies like Whitacre Greer to 
secure the needed investments to pay for new control 
equipment--equipment that provides zero return on investment.
    Additionally, and this is an important point, the EPA, as 
you mentioned, Mr. Chairman, finalized a similar rule in 2003 
that already required brick companies to spend millions of 
dollars on control equipment and the industry did that when 
that rule was implemented. A few years later, a federal court 
vacated that rule, making that investment useless. 
Unfortunately, the brick industry couldn't roll back the clock 
and recover the investment they had made and, worse yet, the 
EPA's new emission rules used reductions achieved by the 
vacated rule as the baseline for further emission reduction 
requirements.
    Now, I don't think anybody here would disagree. I see the 
need to protect public health and the environment. But it is 
unfair that the agency's new rule does not give the industry 
credit for the emission reductions that it has already 
achieved. This lack of consideration in addition to other EPA 
rule requirements places the industry's very survival in 
jeopardy.
    The brick industry is a part of the American fabric. It is 
a part of American culture. It has built some of the most 
iconic buildings and towns in existence today. We must make 
certain our regulations and laws preserve this industry, not 
end it. The BRICK Act will help keep this important industry 
alive.
    Unless we want to start constructing buildings out of 
sticks and straw, we better wise up. We, collectively, all 
across this country, here in the House, in the Senate, in the 
federal agencies like the EPA, need to act responsibly on this 
issue.
    And with that, Mr. Chairman, I will look forward to 
discussing the issue.
    Mr. Shimkus. Would the gentleman yield? Would the gentleman 
yield?
    Mr. Johnson. Yes, I certainly will yield.
    Mr. Shimkus. Thank you. I just want to take this time to 
welcome Congressman Rothfus from Pennsylvania and especially on 
this piece of legislation.
    Congressman Doyle mentioned it. I also have a lot of sites 
that could be recycled. I think Keith proves to be a sound 
political mind and does due diligence and we are glad you 
finally get a chance to air this bill before the subcommittee 
and we want to welcome you.
    Likewise to my colleague and friend, Bill Johnson. He's 
right. The brick industry is really mom and pop businesses that 
have operated and survived for many years. I would just remind 
my friends that the biggest damage to the health of our 
individual citizens is unemployment and no jobs.
    And so our fight is to make sure that we can continue to 
provide good-paying jobs with health care benefits to our 
citizens before it is too late. With that, I yield back my 
time.
    Mr. Whitfield. Gentleman yields back.
    At this time, the chair recognizes the gentleman from New 
Jersey, Mr. Pallone, for 5 minutes.

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you, Mr. Chairman.
    Today, we are considering two bills that undermine EPA air 
rules that are instrumental in protecting public health and the 
environment by reducing mercury and other hazardous air 
pollutants from power plants and other industrial sources.
    Let me start with H.R. 3797, the Satisfying Energy Needs 
and Saving the Environment Act, or SENSE Act. This bill would 
revise the mercury and air toxics, or MATS rule, and the cross-
state air pollution rule, or CSAPR rule, to allow power plants 
that burn coal refuse to emit higher levels of sulfur dioxide 
and hydrogen chloride. Sulfur dioxide is known to cause adverse 
respiratory impacts and hydrogen chloride is corrosive to eyes 
and skin and can irritate the respiratory tract.
    Supporters of this bill will say that facilities that burn 
coal refuse are doing a good thing by cleaning up the 
environment and generating power. But I don't think we are here 
today to debate that. Instead, we are here to consider whether 
the facilities that burn coal refuse should be given a free 
pass on complying with EPA rules to reduce certain air 
pollutants and I believe that is a very bad idea. Coal refuse 
plants are no different than other coal plants and therefore 
should be held to the same emission standards.
    Supporters of this bill have also argued that coal refuse 
plants deserve special treatment when it comes to these air 
rules. In the context of the MATS rule I would note that the 
EPA, the courts and the Senate, which considered a coal refuse-
related amendment last January, have all reviewed and rejected 
the argument that they should be given special consideration. 
In the context of the CSAPR rule, the SENSE Act is unnecessary 
and I just think bad policy. The current rule uses a phased-in 
approach to achieve emission reductions where facilities 
receive emission allowances that decrease over time. The bill 
would shift a greater percentage of these emission allowances 
to coal refuse plants. EPA has a plan for how these allowances 
should be allocated to individual plants. But states also have 
the ability to submit their own plan for achieving the required 
emission reductions. What this means is the state, if it 
chooses, already has the power to give extra allowances to coal 
refuse plants as this bill would mandate.
    Beyond being unnecessary, this provision undermines the 
CSAPR trading system and creates inequities in the market. The 
SENSE Act picks winners and losers, tipping the scales in favor 
of coal refuse plants at the expense of all other plants within 
a state.
    Now, briefly turning to the other bill, the BRICK Act 
extends compliance deadlines until all legal challenges are 
resolved by the courts. If this sounds familiar, that is 
because it is. We saw a similar provision in H.R. 2042, the 
Ratepayer Protection Act.
    We also had a similar discussion at our hearing on that 
bill when the witness pointed out that the current judicial 
process for delaying a rule ``has withstood the test of time 
and ensures the 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.''
    I do understand there are special circumstances related to 
this particular rule. The brick industry has made good faith 
efforts to work with EPA and to reduce their emissions. 
However, the litigation delay in the BRICK Act creates a very 
bad precedent, in my opinion.
    The bills we are considering today would undermine 
protections and set bad legislative precedence going forward 
and therefore I cannot support either of them, and I yield 
back.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Pallone follows:]

             Prepared statement of Hon. Frank Pallone, Jr.

    Thank you Mr. Chairman. Today, we are considering two bills 
that undermine EPA air rules-rules that are instrumental in 
protecting public health and the environment by reducing 
mercury and other hazardous air pollutants from power plants 
and other industrial sources.
    Let me start with H.R. 3797, the ``Satisfying Energy Needs 
and Saving the Environment Act (or SENSE Act). This bill would 
revise the Mercury and Air Toxics or MATS rule and the Cross 
State Air Pollution Rule or CSAPR rule to allow power plants 
that burn coal refuse to emit higher levels of sulfur dioxide 
and hydrogen chloride. Sulfur Dioxide is known to cause adverse 
respiratory impacts; and hydrogen chloride is corrosive to eyes 
and skin and can irritate the respiratory tract.
    Supporters of this bill will say that facilities that burn 
coal refuse are doing a good thing by cleaning up the 
environment and generating power. We're not here today to 
debate that. Instead we are here to consider whether facilities 
that burn coal refuse should be given a free pass on complying 
with EPA rules to reduce certain air pollutants. I believe 
that's a very bad idea--coal refuse plants are no different 
than other coal plants and, therefore should be held to the 
same emissions standards.
    Supporters of this bill have also argued that coal refuse 
plants deserve special treatment when it comes to these air 
rules. In the context of the MATS rule, I would note that EPA, 
the courts, and the Senate--which considered a coal refuse-
related amendment last January--have all reviewed and rejected 
the argument that they should be given special consideration. 
In the context of the CSAPR rule, the SENSE Act is unnecessary 
and just bad policy. The current rule uses a phased-in approach 
to achieve emissions reductions--where facilities receive 
emissions allowances that decreases over time. The bill would 
shift a greater percentage of these emissions allowances to 
coal refuse plants. EPA has a plan for how those allowances 
should be allocated to individual plants, but states also have 
the ability to submit their own plan for achieving the required 
emissions reductions. What this means is a state--if it 
chooses--already has the power to give extra allowances to coal 
refuse plants as this bill would mandate.
    Beyond being unnecessary, this provision undermines the 
CSAPR trading system and creates inequities in the market. The 
SENSE Act picks winners and losers, tipping the scales in favor 
of coal refuse plants, at the expense of all other plants 
within a state.
    Briefly turning to the other bill, the BRICK Act extends 
compliance deadlines until all legal challenges are resolved by 
the courts. If this sounds familiar, that's because it is: we 
saw a similar provision in H.R. 2042, the Ratepayer Protection 
Act.
    We also had a similar discussion at our hearing on that 
bill, when a witness 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.''.
    I do understand there are special circumstances related to 
this particular rule. The brick industry has made good faith 
efforts to work with EPA and to reduce their emissions. 
However, the litigation delay in the BRICK Act creates a very 
bad precedent. I believe this issue can and should be resolved 
by the courts.
    The bills we are considering today would undermine 
protections and set bad legislative precedents going forward, 
and therefore I cannot support either of them.
    Thank you.

    Mr. Whitfield. Gentleman yields back and that concludes the 
opening statements. Like our friend from Illinois, I also want 
to welcome Keith Rothfus, a member of Congress from the 
Commonwealth of Pennsylvania, with us today.
    He is the author of the SENSE Act and has been--I know we 
have had many discussions about it. I know he has been talking 
to EPA about it and had discussions with other groups as well.
    So welcome, Congressman Rothfus, and you are recognized for 
a 5-minute opening statement.

    STATEMENT OF HON. KEITH J. ROTHFUS, A REPRESENTATIVE IN 
         CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

    Mr. Rothfus. Thank you, Mr. Chairman, and thank you for----
    Mr. Whitfield. And be sure to turn the microphone on.
    Mr. Rothfus. Thank you, Mr. Chairman, and thank you for 
holding this hearing today on two vitally important pieces of 
legislation, the SENSE Act and the BRICK Act. I also want to 
thank Vincent Brisini, director of environmental affairs at 
Olympus Power, and Dennis Beck, the chairman of the Western 
Pennsylvania Coalition for Abandoned Mine Reclamation, for 
coming to Washington today to provide additional insight on my 
legislation.
    The SENSE Act, which stands for Satisfying Energy Needs and 
Saving the Environment Act, is a common sense solution that 
allows innovative coal refuse-to-energy facilities to generate 
affordable reliable energy and continue their essential 
environmental remediation work in a responsible manner.
    As many of you know, the coal industry has been a central 
power to Pennsylvania's economy for many years. Unfortunately, 
historic mining activity littered Pennsylvania and a few other 
states with large piles of coal refuse, sometimes called waste 
coal, which is essentially a mix of lower quality coal, rocks, 
and dirt that remain after the mining and processing of coal. 
Before technology was invented to make use of this material, it 
accumulated in open spaces alongside cities and towns close to 
schools and neighborhoods and in fields across coal country.
    This led to a number of environmental problems that still 
plague affected communities. These include air pollution, 
damage to vegetation and wildlife, and water pollution from 
acid mine drainage. I have been to several of these sites and 
seen firsthand the environmental danger they pose. Coal refuse 
piles can catch fire and burn for unacceptably long periods of 
time, polluting nearby neighborhoods. Runoff from these sites 
can turn rivers orange and leave them devoid of life. According 
to Pennsylvania's environmental regulator, it would cost 
roughly $2 billion to clean up this hazard in my state alone.
    This is a significant challenge, but is one that 
Pennsylvanians and others in coal country are prepared to meet. 
The coal refuse-to-energy industry has been a leader in solving 
this problem. With advanced technology, this industry has been 
able to use this previously worthless material to generate 
affordable and reliable energy. In the process, they have 
removed over 200 million tons of coal refuse in Pennsylvania 
alone and remediated many formerly polluted sites. Thanks to 
the hard work of the dedicated people in this industry, 
landscapes have been restored, rivers and streams have been 
brought back to life, and towns across coal country have been 
relieved of unsafe and unsightly waste coal piles.
    It is important to note that private sector leadership on 
this issue has saved taxpayers millions of dollars in cleanup 
costs. It has also created hundreds of family-sustaining jobs 
in areas that have been economically distressed for many years. 
These jobs and the communities they support are at risk today, 
unless we stand to defend them.
    The work that the coal refuse-to-energy industry has done 
is remarkable and it represents an environmental success story 
that should transcend partisan lines. Despite my best efforts 
to advocate for a compromise, the Environmental Protection 
Agency has refused to adjust the regulations that threaten to 
shut down much of the coal refuse-to-energy industry and thus 
imperil its vital remediation efforts. The intensification of 
two existing rules--the Mercury and Air Toxic Standards, or 
MATS rule, and the Cross-State Air Pollution Rule, or CSAPR--is 
especially concerning.
    Though all coal refuse fire-powered generators can meet the 
mercury standard under MATS--let me reemphasize that--the coal 
refuse fire-powered generators can meet the mercury standards 
under MATS, many facilities will be unable to meet the rule's 
new hydrogen chloride or sulfur dioxide standards. The SENSE 
Act provides operators with alternative compliance standards 
that are strict but achievable.
    Similarly, although coal refuse fire-powered generators 
were provided sufficient sulfur dioxide allocations in phase 
one of the CSAPR's implementation, these facilities were 
allocated insufficient credits in phase two, which is set to 
begin in 2017. The SENSE Act seeks to provide coal refuse fire-
powered plants with the same allocation levels in phase two as 
in phase one. My bill also contains provisions to ensure that 
this change does not simply create a profit center for the 
industry. Credits allocated as a result of the SENSE Act's 
implementation must go to covered plants, specifically those 
that use bituminous coal refuse and they cannot be sold off to 
other operators.
    The SENSE Act represents a common-sense compromise between 
the legitimate goals of controlling pollutants emitted from 
coal refuse-to-energy facilities and ensuring that regulations 
imposed on the industry are fair and allow vital remediation at 
work to continue. The people who live near coal refuse piles 
and all the communities downstream of these hazards expect us 
to find a solution. The industrious men and women at the power 
plants, on the coal refuse piles and throughout the supply 
chain are counting on us to protect their livelihoods. We owe 
it to all of them to pass the SENSE Act.
    Again, I thank the committee for holding this important 
hearing and I welcome any questions that you may have.
    [The prepared statement of Mr. Rothfus follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Well, Congressman Rothfus, thank you very 
much for being with us today, and as much as we would like to 
ask you questions we are going to dismiss you because we have 
another panel and we are going to be asking them a lot of 
questions.
    But I want to thank you again for your leadership and 
bringing this to our attention and we all look forward to 
working with you to try to move this legislation to provide 
some assistance. I thank you very much.
    Mr. Rothfus. Thank you, Chairman.
    Mr. Whitfield. Thank you.
    Now, at this time I would like to call up the witnesses on 
the second panel.
    We have five of them. We have Mr. Davis Henry, who is the 
president and CEO of Henry Brick. We have Mr. Creighton McAvoy, 
who is president of McAvoy Brick Company.
    We have Mr. Vincent Brisini, who is the director of 
environment affairs for Olympus Power and we have Mr. Dennis 
Beck, chairman of the Western Pennsylvania Coalition for 
Abandoned Mine Reclamation, and we have Mr. John Walke, who is 
senior attorney and clean air director at the Natural Resources 
Defense Council.
    So if you all would come forward and have a seat. I want to 
thank all of you for joining us this morning to discuss these 
two pieces of legislation.
    We know that all of you have your expertise and we, as a 
committee, look forward to learning more about both of these 
bills and the impacts that they might have.
    So, Mr. Brisini, you will be first and so everyone make 
sure their microphones are on when you do speak so that our 
transcriber here can get everything down.
    But, Mr. Brisini, you are now recognized for five minutes 
for your opening statement.

STATEMENTS OF VINCENT BRISINI, DIRECTOR, ENVIRONMENTAL AFFAIRS 
FOR OLYMPUS POWER; DENNIS BECK, CHAIRMAN, WESTERN PENNSYLVANIA 
 COALITION FOR ABANDONED MINE RECLAMATION; JOHN WALKE, SENIOR 
  ATTORNEY AND CLEAN AIR DIRECTOR, NATURAL RESOURCES DEFENSE 
COUNCIL; DAVIS HENRY, PRESIDENT AND CEO, HENRY BRICK; CREIGHTON 
       ``BUTCH'' MCAVOY, PRESIDENT, MCAVOY BRICK COMPANY

                  STATEMENT OF VINCENT BRISINI

    Mr. Brisini. Good morning. I would like to thank the chair 
and the committee for holding this hearing on the SENSE Act.
    My name is Vince Brisini and I am the director of 
environmental affairs for Olympus Power. Today, I am testifying 
on behalf of ARIPPA, the trade association of the coal refuse-
to-energy industry.
    ARIPPA members' facilities remove and convert coal refuse 
from historic mining activities into environmentally beneficial 
electricity. In fact, our electricity is recognized in the 
Pennsylvania Alternative Energy Portfolio Standards Act. Coal 
refuse is a material that has been left behind by historic coal 
mining activities. This includes the mining and the processes 
which separated the coal from rock and other carbonaceous 
material. The picture on the screen shows a coal refuse pile on 
the left and on the right the mine acid drainage that can 
emanate from these piles. If you look at the coal refuse pile 
picture you can see the mine acid drainage-polluted stream on 
the right and at the bottom of the coal refuse pile. The pink 
areas on the pile are evidence that this pile has previously 
burned. Where I come from, that material is called red dog.
    The next likely question is how much coal refuse is out 
there. No one really knows. But it is estimated to be about 2 
billion cubic yards in Pennsylvania alone and that is split 
about evenly between the bituminous region in the western part 
of the state and the anthracite region in the eastern part of 
the state. This map shows the abandoned mine lands and the 
location of the coal refuse-to-energy plants in Pennsylvania. 
It also shows the watersheds impacted by mining-affected lands 
including coal refuse piles.
    Everyone downstream of mining-affected lands is impacted by 
the surface water pollution from these areas. The coal refuse-
to-energy process consists of three basic steps. The coal 
refuse is screened and removed from the site and then hauled to 
the coal refuse-to-energy plant. The coal refuse is then burned 
with limestone in a fluidized bed combuster boiler to make 
steam to produce electricity and that results in ash that meets 
the criteria for beneficial use in Pennsylvania and that ash is 
returned to the mining-affected lands and used to remediate and 
reclaim those areas.
    The coal refuse-to-energy process is the only process that 
permanently addresses the problems associated with coal refuse. 
Some key industry metrics in Pennsylvania are 1,500 megawatts 
of electric generating capacity, 11 million tons of coal refuse 
removed annually for fuel, over 205 million tons of coal refuse 
used so far for fuel, thousands of acres of land remediated and 
reclaimed, hundreds of miles of streams improved by elimination 
of acid mine drainage, 1,200 direct jobs with a payroll in 
excess of $84 million per year, 4,000 indirect jobs for project 
management, engineering, operations, transportation, logistics 
and skilled trades, property tax revenues to support local 
schools and communities and over $10 million per year of 
business per facility into their local economy--collectively, 
$150 million per year into Pennsylvania's economy. The 
regulatory issues being addressed by the SENSE Act are the 
Cross-State Air Pollution Rule and the Mercury and Air Toxic 
Standards.
    While ARIPPA has engaged in both verbal and written 
communications with EPA regarding the issues associated with 
coal refuse-fired boilers, EPA has failed to recognize the 
technical differences between coal-fired and coal-fired refuse 
boilers and the unique multimedia benefits the coal refuse-
fired boilers provide to Pennsylvania. The SENSE Act, on the 
other hand, provides for very targeted appropriate achievable 
emission control requirements for certain of these units. 
Specifically, under the cross-state air pollution rule the 
SENSE Act continues phase one sulfur dioxide allowance 
allocations to existing bituminous coal refuse-fired units 
only. But it preserves EPA's sulfur dioxide emissions budget by 
reallocating a percentage of allowances from retired units in 
two plants that were converted from coal to natural gas. 
However, it does not allow the transfer of these sulfur dioxide 
allowances to other units and upon retirement any banked sulfur 
dioxide allowances allocated under the SENSE Act must be 
surrendered.These caveats prevent an economic windfall to these 
bituminous coal refuse-fired units and most likely they result 
in less sulfur dioxide being emitted into the environment.
    In the case of the Mercury and Air Toxic Standards, the 
SENSE Act adds an additional performance-based standard of 93 
percent sulfur dioxide removal to the current acid gas 
standards for demonstration of compliance. This again provides 
for the necessary relief for the continued operation of the 
bituminous coal refuse-fired plants.
    The SENSE Act is a reasonable and targeted effort to 
address the errors that EPA has made in CSAPR and MATS and is 
very important to ensuring that these coal refuse-fired 
facilities remain able to conduct their business of reclaiming 
and recovering these mining-affected lands and providing high 
quality family-sustaining jobs in the communities in which 
these facilities are located.
    ARIPPA would like to thank Rep. Rothfus and we urge you to 
support the SENSE Act and its passage in this session of the 
U.S. House of Representatives.
    [The prepared statement of Mr. Brisini follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    [The addendum to Mr. Brisini's testimony has been retained 
in committee files and can be found at: http://docs.house.gov/
meetings/if/if03/20160203/104366/hhrg-114-if03-wstate-brisiniv-
20160203.pdf.]
    Mr. Whitfield. Thank you very much, Mr. Brisini.
    And Mr. Beck, you are now recognized for 5 minutes.

                    STATEMENT OF DENNIS BECK

    Mr. Beck. Usually I don't need a microphone but I'll tone 
myself down today.
    Good morning Mr. Chairman, and the rest of the committee 
members. My name is Dennis Beck. I am president or chairman of 
the Western Pennsylvania Coalition for Abandoned Mine 
Reclamation, otherwise known as WPCAMR. We have a sister 
organization called EPCAMR, which is the eastern Pennsylvania 
coalition.
    The coalition appreciates the opportunity to appear today 
and share our views and concerns on the effects of the waste 
coal-to-energy plants in restoring the degraded environment in 
coal-producing areas, especially in Pennsylvania. I am 
expressing support for House bill 3797, the SENSE Act, which 
will help establish the standards for EPA to regulate waste 
coal-to-energy plants. Our efforts focus on returning abandoned 
mine lands and waste coal piles to productive use, improving 
water quality, and reducing hazards to health and safety, thus 
improving the local economy and enhancing the quality of life.
    Today, the runoff from these waste coal piles is polluting 
our surface and ground water supplies for several miles around 
the piles with other numerous impacts on our environment. 
Chemicals such as mercury, selenium, chromium, lead, aluminum, 
iron, and manganese are seeped out of these coal piles into our 
water supplies.
    Where I live in Cambria County we are at the head waters of 
the Ohio River and Pennsylvania is also part of the head waters 
for the Chesapeake Bay. So any pollution that rolls off these 
coal piles affects everyone downstream. Changes in the PH in 
these streams destroys aquatic life from the macro 
invertebrates to fish. None survive in it, from some of the 
pictures that Vince had shown.
    Here is an important part: if left alone, many of these 
piles will self-ignite. We have got 40 piles in the state of 
Pennsylvania that are burning at this time. In Lackawanna 
County, in 2014 Pennsylvania's DEP had to extinguish that pile. 
It cost them over $2 million to extinguish the one pile that 
was burning.
    The three coal generation plants in my county have 
significantly improved and impacted our county. They have 
burned over 25 million tons of waste coal while supplying 
electricity to the 280,000 residences. The three plants employ 
200 people directly, and indirectly 300 more. They have 
reclaimed over 525 acres of abandoned mine lands, contributed 
over $25 million to the local community since they have been 
put in place and have won numerous state and environmental and 
safety awards since 1992.
    I just want to talk a little bit about two of the 
reclamation sites in Cambria County. In Revloc, the Blacklick 
Creek was a dead stream for several decades. That has been 
restored. Over 100 acres of land have been restored. The south 
branch of the Blacklick is now designated as a cold water 
fishery by the Pennsylvania Fish and Boat Commission and it is 
eligible for fish stocking for the local fishermen.
    In Washington township, there has been 3.5 million tons of 
waste coal removed. In its place, there are four ball fields, 
two and a half miles of walking trails, a community hall, a 
coal miners monument and a bell tower. It is now a gathering 
place for the entire community both young and old, improving 
the vitality of a once dying community. A contractor has also 
subdivided numerous acres for housing growth in that area.
    Another one of these big projects that was undertaken is 
called the Big Gorilla project in northeast Pennsylvania. It 
cost DEP $4.5 million to reclaim those acres, and they 
estimated if the waste coal plants had not come in to take the 
waste coal out of there that reclamation cost would have been 
$80 million and it cost $4.5 million to get it cleaned up and 
restored.
    I want to look at net benefits. Several people have talked 
about the benefits of cleaning these sites up and stuff that we 
have put on it. I have mentioned a couple of them. Let me just 
mention what would happen if they are not cleaned up. There is 
over 5,000 piles of waste coal left in Pennsylvania. There are 
40 of them burning at this time. If they are left alone, 
numerous more are going to self-ignite and what comes off of 
those piles in the smoke and the steam that come off of there 
are, again, your mercury, your sulfates, your chlorides, 
hydrogen sulfide. You have polycyclic organics, which are 
phenols, coming off of there in that smoke. Furthermore, let me 
mention this one also.
    EPA has indicated from past statements that because of the 
unique environmental benefits that coal refuse-fired electric 
generating units provide, these units warrant special 
consideration so as to prevent the amended NSPS, the new source 
performance standards, from discouraging the construction of 
future coal refuse-fired plants in the U.S. and that is in the 
ARIPPA report that was updated. It is a white paper updated on 
October 5th of 2015.
    We feel it is not equitable and one regulation does not fit 
all the plants the same. It's an over-burdening and unfair 
regulation and we support Rep. Rothfus' House bill that will 
examine the EPA regulation on emissions of these waste coal 
plants.
    We feel that waste coal plants provide a greater benefit to 
the environment, communities and residents of the unregulated 
coal mining regions of the past. The amount of pollution 
removed and streams restored to new life must be considered as 
greatly beneficial to the people of the United States.
    Mr. Whitfield. Mr. Beck, excuse me. I have let you go over 
about a minute and a half so----
    Mr. Beck. Three lines. Three lines.
    Mr. Whitfield. OK.
    Mr. Beck. These waste plants are a great example of 
ingenuity, cutting-edge technology and concern for the 
environment. The positive impact of the waste coal burning 
plants include enhancements on land, water, air, living 
organisms as well as social, cultural, and economic 
environments.
    And thank you, Mr. Chairman.
    [The prepared statement of Mr. Beck follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Thank you so much.
    Mr. Walke, welcome back. We appreciate your being here this 
morning. You're recognized for 5 minutes.

                    STATEMENT OF JOHN WALKE

    Mr. Walke. Thank you, Chairman Whitfield and members of the 
committee. It is good to be back.
    My name is John Walke and I am clean air director and 
senior attorney for the Natural Resources Defense Council, a 
nonprofit organization of scientists, lawyers and environmental 
specialists dedicated to protecting public health and the 
environment.
    H.R. 3797, the Satisfying Energy Needs and Satisfying the 
Environment Act, is a flawed bill that would weaken air 
pollution standards for waste coal plants and increase 
dangerous and deadly pollution under two of the most important 
clean air rules ever adopted for coal-burning power plants. I 
am not here to dispute or to debate beneficial uses of waste 
coal to energy production, as Congressman Pallone noted. H.R. 
3797 will, however, increase emissions of harmful sulfur 
dioxide and particulate matter pollution as well as hazardous 
air pollution in states with coal plants. This will impose 
additional avoidable health hazards on Americans. My oral 
testimony will make four basic points.
    First, H.R. 3797 picks winners and losers under EPA's 
signature interstate air pollution program, the cross-state 
rule. It does so by favoring waste coal power burning--waste 
coal power burning plants at the expense of all the other in-
state power plants that generate electricity with other types 
of coal or oil. H.R. 3797 even deprives some of these other 
coal plant operators of valuable economic assets to which they 
are entitled under current law. This political favoritism 
upends the neutral performance-based legal system that Congress 
has maintained for interstate air pollution for 39 years. H.R. 
3797 deprives valuable allowances from non-waste coal plant 
operators that make cleaner decisions. This deters cleaner 
generation and penalizes other in-state coal burning power 
plant operators. H.R. 3797 penalizes the coal plant operators 
that do not burn waste coal by reducing valuable sulfur dioxide 
allowances that the operator is entitled to hold or trade or 
sell under current law. This especially harmful element of the 
bill has the unjustified effect of rewarding dirtier operation 
by waste coal plants and penalizing less polluting decisions by 
coal plant operators to switch to natural gas or cease 
operation. Indeed, were this legislation to become law the bill 
would create immediate disincentives to repowering coal units 
to natural gas or shutting down older inefficient units. This 
is not good public policy.
    Second, the bill attacks state rights under the Clean Air 
Act. The legislation deprives state officials of the 
flexibility and prerogative to determine from which in-state 
sources sulfur dioxide reductions are best secured to comply 
with the cross-state rule and how to achieve those reductions 
most effectively, equitably, and cost effectively. The 
legislation would take control away from states to make these 
basic decisions for the first time in the 39-year history of 
the Clean Air's program. Remarkably, the bill even goes on to 
place the U.S. EPA administrator in charge of decisions that 
the Clean Air Act today reserves to states. If state officials 
in Pennsylvania or West Virginia, for example, wish to 
incentivize the waste coal energy industry, they may do so 
today under current law. State officials may grant more sulfur 
dioxide allowances to waste coal plant operators from the 
state's total emission budget under the cross-state rule. There 
is no need to pass legislation like this to accomplish that. 
Indeed, the bill would paradoxically deny state officials the 
flexibility and authority that they enjoy under today's law.
    Third, the bill allows unhealthy levels of sulfur dioxide 
pollution to increase above a state's total budget level, 
worsening air quality in upwind and downwind states. Due to a 
fatal flaw in the bill discussed in my written testimony, there 
is no constraint in the real world on the sulfur dioxide 
emissions exceeding a state's overall pollution budget. The 
result would be more pollution in upwind and downwind states.
    Fourth and finally, the bill harms Americans' health and 
air quality by letting waste coal plants emit excessive levels 
of dangerous hazardous air pollution. It adds an alternative, 
more lax emission standard for sulfur dioxide emissions to the 
two more protective standards in the rule already. The EPA has 
noted that some waste coal plants already are meeting either 
the rule sulfur dioxide standard or hydrogen chloride standard 
or both. Others will do so by April of this year after seeking 
compliance extensions and installing available pollution 
controls to meet the standards. When waste coal plants owners 
filed lawsuits challenging the mercury rule, claiming it was 
``virtually impossible to meet the acid gas and sulfur dioxide 
limits,'' the court had little trouble rejecting these 
arguments unanimously. The judges pointed to evidence showing 
that eight out of 19 waste coal units with data already could 
meet the rule's acid gas standard or alternative sulfur dioxide 
standard. Indeed, the court noted that some of these already 
compliant plants are among the best performers--let me repeat 
that--among the best performers in achieving hydrogen chloride 
reductions among all coal-burning power plants around the 
country.
    Finally, H.R. 3797 would allow higher levels of sulfur 
dioxide emissions and hazardous air pollution. This outcome is 
harmful for Americans living in states with these coal plants 
and harmful to Americans living downwind from these plants.
    This too is bad public policy and I urge members of the 
committee not to approve the bill. Thank you.
    [The prepared statement of Mr. Walke follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Mr. Walke, thank you very much.
    And, Mr. Henry, you are now recognized for five minutes.

                    STATEMENT OF DAVIS HENRY

    Mr. Henry. Chairman Whitfield, distinguished members of the 
subcommittee, good morning and thank you for inviting me to 
testify.
    Mr. Whitfield. Have you turned your mic on?
    Mr. Henry. Sorry about that. Chairman Whitfield and 
distinguished members of the subcommittee, good morning and 
thank you for inviting me to testify on this important issue.
    My name is Davis Henry and I am the president of Henry 
Brick, which has manufactured clay brick in Selma, Alabama for 
over 70 years. I represent the third generation of Henrys to 
operate this plant. I also currently serve as the vice chairman 
of the board for the Brick Industry Association, the national 
trade association that represents manufacturers and 
distributors of clay brick and pavers. I am here today to speak 
on behalf of both my company and my industry.
    Henry Brick currently employs 58 people including our 
manufacturing, sales, and support staff. That number hopefully 
will grow this year to about 95 when we bring plant two back 
online. It has been idle since June of 2008 due to the economy. 
As you can imagine, the last 8 years have been a very trying 
time for our company as well as the rest of the brick industry. 
We are committed to doing our share to protect our environment, 
but with a finite amount of resources we need to be sure that 
we know what is required of us and that the expectations will 
not change once the resources are committed. I am here today 
because we were directly impacted by a previous change in 
regulation and I want to ensure that my company and all 
remaining brick companies do not fall victim to this again.
    In 2003, the first maximum achievable control technology, 
or MACT, standard was promulgated for our industry. This rule 
applied only to major sources of hazardous air pollutants, or 
HAP, and only to the larger kilns in our industry. For our 
industry with only two pollutants emitted in any large amount, 
the only definition of major source that really applies is a 
facility that has the potential to admit ten tons or more of 
any single HAP. Henry Brick was a major source of HAP in 2003 
and had two kilns considered to be large by the EPA. We had 
until 2006 to install and begin operating control devices to 
meet the limits, which we did. We installed limestone-based 
systems called DLAs, or dry lime absorbers, on both our kilns 
at a total capital cost of about $1.5 million.
    In 2007, almost a full year after our industry achieved 
compliance with the 2003 MACT, it was vacated by the courts for 
deficiencies. Unfortunately, most of us, including Henry Brick, 
were unable to turn off our control devices because our 
existing air permits would not allow us to stop operating the 
controls. The cost to operate the control devices over the last 
eight plus years has been significant as well. During the 
compliance time for the 2003 Brick MACT, the number of 
controlled kilns in our industry soared from just over 20 to 
more than 100 kilns.
    In 2008, the EPA began developing the replacement MACT that 
eventually became the 2015 Brick MACT. To develop the standard, 
the EPA looked at the best performing kilns including those 
brand new controls that would not have been in place except for 
the 2003 Brick MACT to establish the limits. Unfortunately, 
like many who installed DLAs, our kilns could not meet these 
new more stringent limits. We recently conducted a stacked test 
at our facilities that confirmed our inability to meet the 
limits for two of the three HAP categories. We cannot meet the 
mercury limit nor the PM nonmercury metals limit. To comply 
with the 2015 Brick MACT, we believe we would need to take out 
the DLAs we installed in 2006 and install a new system called a 
dry injection fabric filter. The EPA estimates this would cost 
us about $3.8 million per kiln, almost $8 million to our 
company. There is an alternate solution that may be as little 
as $1.65 million but it has not been proved and we don't know 
how that will pan out. The EPA's estimated emission reduction 
for an average kiln for mercury metals is less than 400 pounds 
per year for an uncontrolled source. So our incremental 
reduction from our control kilns would be even less.
    There is a way to avoid MACT compliance. In fact, the EPA's 
first listed option for complying with the rule is to avoid the 
rule by becoming a synthetic matter or synthetic area source. 
To become a synthetic area source a facility accepts federally 
enforceable limits that ensures they never emit more than the 
ten tons per year that makes you a major source. If you are 
like Henry Brick and have both of your kilns controlled with 
air pollution control devices, the EPA assumes that you can 
become a synthetic area source at little or no cost. If you 
follow EPA's approach to assigning cost, you would assign an 
annual cost of less than $20,000 per year.
    Unfortunately, our most recent tests also demonstrate that 
we cannot become a synthetic area source as we currently 
operate. We have some issues with raw materials and other 
things but it is going to cost money to solve these issues and 
it will be a lot more than $20,000.
    While compliance with this regulation alone threatens small 
businesses like Henry Brick, if you consider that this is the 
only regulation we face correctly identifying the appropriate 
place to spend our finite sources is critical to our survival. 
For example, the Occupational Safety and Health Administration 
is about to finalize a new permissible exposure limit for 
silica dust that, if promulgated as it was proposed, will add 
almost another million dollars in equipment that my company may 
need to finance and install to remedy a nonexistent silicosis 
threat in brick plants. Regulations like these threaten the 
continued existence of many small companies in our industry 
including mine. In fact, compliance with both of these rules at 
the same time could devastate much of our already threatened 
industry where 75 percent of the companies are small 
businesses.
    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 because we may need to 
take out our DLAs and replace them with this. 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.
    Thank you for introducing this bill and for taking the time 
to listen to me today. I am happy answering any additional 
questions you may have.
    [The prepared statement of Mr. Henry follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    [The addendum to Mr. Henry's testimony has been retained in 
committee files and can be found at: http://docs.house.gov/
meetings/if/if03/20160203/104366/hhrg-114-if03-wstate-henryd-
20160203-u2.pdf.]
    Mr. Whitfield. Thank you very much.
    Mr. McAvoy, you are recognized for 5 minutes.

                 STATEMENT OF CREIGHTON MCAVOY

    Mr. McAvoy. Thank you.
    Chairman Whitfield and distinguished members of the 
subcommittee, good morning and thank you for inviting me to 
testify on this issue that could have potentially devastating 
consequences to my company and to my industry.
    My name is Creighton McAvoy. I am president of the McAvoy 
Brick Company, which has manufactured clay brick and pavers in 
Phoenixville, Pennsylvania for over 120 years. However, my 
family history with brick making goes back five generations to 
1866 when my grandfather started a brick plant in Philadelphia 
with his brother-in-law. He eventually started two more brick 
yards in south Philadelphia with his sons and in 1895 he and 
his sons started a new corporation to make vitrified street 
pavers in Phoenixville. We are still making brick on that site 
today.
    In 2006, McAvoy Brick employed 26 hourly union employees 
and six salaried employees working year round and had sales of 
over $5.5 million. In 2012, due to the effects of the Great 
Recession on our industry, McAvoy Brick sales bottomed out at 
just under $2.5 million and we employed four salaried employees 
and 20 hourlies, most of which were laid off 5 to 6 months of 
that year. Last year, business slightly improved to just under 
$2.8 million in sales and employment increased to five salaried 
employees and 21 hourly employees, most of which were employed 
over 8 months. Throughout all this downturn, McAvoy Brick has 
been able to pay all its bills and for the most part stay in 
the black. As you can see, we are a very small business, even 
for the brick industry.
    I am here today because while we were not required to put 
on controls in the last round of this regulation, it appears we 
will need to under this new rule. 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 happened to companies like Henry Brick does 
not happen again. We believe the BRICK Act can give us this 
certainty we need.
    I am not only here on behalf of my company; I am here on 
behalf of my industry, as I serve on the board of directors of 
the Brick Industry Association. Approximately 75 percent of the 
companies in the brick industry are small businesses 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. Our industry is committed to do our share 
and doing the right thing for our employees, our vendors, our 
customers and our community. However, as our industry continues 
to struggle to come out of the Great Recession, we, like all 
industries, have limited resources. It is imperative that these 
limited resources be used judiciously and on the most important 
issues. It is important that there is some benefit to every 
dollar spent and that the money not be spent needlessly or 
prematurely.
    We were actually one of the fortunate companies when it 
came to the 2003 Brick MACT. As we were able to take a 
production limit from 12 tons of brick per hour through our 
kiln down to just below 10 tons per hour, making our kiln a 
small kiln and not subject to those regulations. That did not 
come without a cost, as we could have sold some of the product 
from that surrendered capacity in the few years before the 
recession. However, we were still better off than what 
compliance did to our fellow brick manufacturers with large 
kilns.
    In 2015, the 2015 Brick MACT does include some of the 
innovative requirements including health-based standards for 
over 99 percent of the hazardous air pollutants emissions from 
our industry's kilns. Unfortunately, the requirement for the 
remaining 1 percent emissions, mercury and nonmercury metals, 
will require the same multimillion dollar controls that would 
have been required before the health-based standards were 
conceived.
    Under the 2015 Brick MACT, we will likely be required to 
install controls on our kiln. We will be conducting tests to 
determine our specific situation. According to EPA's cost 
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. This control device is the same one Henry Brick 
installed on their kilns. If that control is incapable of 
helping us get out of this rule, as it was incapable for Henry 
Brick, 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 a brick kiln emission.
    While we did not have experience complying with control 
limits for the 2003 Brick MACT, another small company similar 
to ours does have experience trying to borrow money from a 
financial institution. In their case, the money was for 
renovations at one of their kilns, an investment that would 
make them more efficient and more productive. They spent the 
last 2 years trying to obtain financing for a renovation of one 
of their kilns. This renovation would reduce their energy cost 
by approximately $500,000 per year and it took two years to 
find a financial institution willing to lend them the money. 
That company is one of the few brick companies to have had 
steady profit since 2007. Their financial status was very good 
for all those loan applications with plenty of collateral. 
However, it still took two years to find an institution willing 
to lend them the funds.
    Mr. Whitfield. Mr. McAvoy, I let you go over about 2 
minutes. If you would summarize your testimony.
    Mr. McAvoy. You may think that the loss of one small brick 
company will not make any difference in our overall economy. 
However, if McAvoy Brick is required to close their doors, more 
than $2.8 million will be lost from our local economy. We pay 
over $1 million in wages for 26 families. Many of these 
employees will have difficulty finding other employment. 
Basically, we are really happy that this legislation has been 
introduced and we hope that it will able to be passed. I thank 
the committee for allowing me the time to speak and I will be 
more than happy to answer any question at this time.
    [The prepared statement of Mr. McAvoy follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Whitfield. Well, thank you and I thank all of you for 
your testimony and at this time I recognize myself for 5 
minutes for questions.
    Mr. Henry, how many employees do you have in your company?
    Mr. Henry. Currently, 58.
    Mr. Whitfield. Fifty-eight. And you have 26 families, Mr. 
McAvoy?
    Mr. McAvoy. Yes.
    Mr. Whitfield. Recently I was reading an article and this 
article happened to be talking about some environmental groups 
who basically were saying that the end justifies the means. And 
that struck a chord with me because you look at the Brick MACT 
of 2003, that regulation which was vacated by a federal court. 
You look at the Utility MACT.
    The Supreme Court recently found that rule to be legally 
flawed and remanded it back to EPA, and the day after the 
Supreme Court's decision EPA said in a blog that the Supreme 
Court ruling was of no practical impact, stating that the 
majority of power plants are already in compliance with our 
regulation or well on their way to compliance.
    It is disturbing to me personally that EPA seems to be 
developing a pattern and they are doing the same thing with the 
Clean Air Act--I mean, the Clean Power Plan in which they--even 
Larry Tribe says it looks like you are burning up the 
Constitution what you're doing here and now it is at the 
Supreme Court on whether or not there is going to be a stay to 
the implementation of this act or not.
    But they seem to be developing a pattern of they come forth 
with these regulations knowing full well the only avenue open 
to a company is to file a lawsuit or an association or groups 
to file lawsuits, knowing full well that that's going to take a 
period of time and the deadline for meeting the regulation is 
going to expire before that can be decided in the courts.
    And so that is a disturbing trend and it seems to me that 
both of you in the brick industry are concerned about that with 
this 2015 act that you are going to have to comply, you are 
going to spend the money and the lawsuits are going to be filed 
and you may end up winning but in effect it is a hollow 
victory. Would you agree with that comment or not?
    Mr. Henry. Certainly. 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.
    Mr. Whitfield. Yes.
    Mr. Henry. 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.
    Mr. Whitfield. We all recognize the Clean Air Act is a very 
important piece of legislation and I don't think America has to 
take a back seat to anyone on clean environment and we can 
credit the Clean Air Act for it. But I do think we have to be 
concerned when a pattern is developing where they are going so 
extreme on some of these regulations they cannot withstand 
legal challenge and yet the practical impact is it makes no 
difference because there is no avenue available.
    So I think that's something we are all concerned about. Let 
me just ask you on the coal refuse issue and the BRICK, have 
you all had a lot of discussions with EPA about your particular 
problem?
    Mr. Brisini. Yes. In fact, those discussions occurred. 
There were meetings on February 29th, 2012, May 30th, 2012, 
March 19th, 2013, May 7th, 2013, November 5th, 2013 and----
    Mr. Whitfield. And do you feel like you are making any 
progress in working on a solution with EPA on this?
    Mr. Brisini. Not at this point, no. We don't believe----
    Mr. Whitfield. OK. What about the brick industry? Have you 
all been meeting with them as well?
    Mr. McAvoy. Oh, yes, we have. We worked with them and we 
were also able to get a health-based rule which is somewhat 
ground breaking.
    Mr. Whitfield. So it has been productive for you?
    Mr. McAvoy. Oh, yes. It has been productive. However, other 
issues come up, the mercury and the metals and it just also 
seems like outside sources suing, caused these problems.
    Mr. Whitfield. Suing to make them to comply?
    Mr. McAvoy. Well, making the change--to vacate the rule.
    Mr. Whitfield. Yes, right. To make--yes, right. Right. 
Well, yes, it is really frustrating and my time is expired. So 
Mr. McNerney, you are recognized for 5 minutes.
    Mr. McNerney. I want to thank the chairman.
    Today's hearing focuses on a couple of bills--oh, sorry. 
That was my opening statement.
    We have heard today that the coal refuse facilities are 
unable to meet the EPA mercury and air toxic standards. But 
this isn't the first time we have heard that kind of claim that 
they can't meet the EPA standards only later to find out that 
the innovation made the standards achievable at minimal cost.
    Mr. Walke, it is my understanding that the EPA used their 
maximum achievable control technology program in setting up the 
mercury and air toxic standards. Could you briefly describe how 
that program works?
    Mr. Walke. Sure. The Clean Air Act's air toxic program 
requires the EPA to look at the best performers in reducing 
toxic air pollution. EPA did so for coal electric plants and 
found that waste coal plants were among the very best in the 
country among all coal plants including those that burned 
bituminous, lignite and otherwise and reducing the HCL 
emissions that are the subject of this bill and this hearing.
    The executive branch has found those emissions can be 
controlled. The judicial branch has found the same thing. State 
officials have found the same thing and plant operators are 
meeting the standards with equipment that is running today.
    Mr. McNerney. Very good. So Congress, in setting up this 
program, did not want to merely maintain the status quo. 
Congress wanted all facilities with an industrial sector to 
make up the necessary upgrades to reduce their emissions in 
line with the best performing units. Is that right?
    Mr. Walke. That's correct, sir. And if I just may add some 
important context to a discussion that just occurred, the 
federal court in 2003 that struck down the BRICK standard found 
that the Bush administration had adopted illegally weak rules 
that did not reflect what the best performers can do. The rule 
was overturned following urgings by the Brick Industry 
Association, the trade group, to adopt those illegal elements 
in the rule and that's why the courts overturned it.
    I agree it is an unfortunate situation but if anything the 
Bush administration induced these companies to install illegal 
and inadequate controls and that was overturned in court which 
is, unfortunately, where we are today.
    Mr. McNerney. Well, the advocates for this bill claim that 
the coal refuse facility should be treated differently from 
other coal fuel generation facilities, that the technology and 
that the fuel used would prevent these facilities from meeting 
MATS standards.
    Did the EPA look at the coal refuse facilities while 
establishing the MATS standards? You sort of already answered 
that. Go ahead.
    Mr. Walke. They absolutely did and found them to be among 
the best performers, a conclusion that was validated by the 
court and rejecting the same arguments that you are now hearing 
from the waste coal industry when they were advanced 
unsuccessfully in a lawsuit.
    Mr. McNerney. Well, has the EPA considered treating these 
facilities differently from the other coal burning facilities?
    Mr. Walke. They already do. They allow these plants alone 
to meet alternative limits of HCL or sulfur dioxide in the air 
toxics rule and----
    Mr. McNerney. Is that appropriate?
    Mr. Walke. And I think that's perfectly appropriate as long 
as they are strict. What this bill does is relax the sulfur 
dioxide limit.
    Another point is really critical. State officials today 
have the authority to treat these plants differently.
    They have the authority to exempt the plants from the 
cross-state rule. They have chosen not to do so. They have also 
chosen to give them their fair share of allowances. But that is 
a decision that can be changed by state officials tomorrow.
    Mr. McNerney. Well, in your testimony you mentioned that 
the courts have also considered challenges to the mercury and 
air toxic rule based on assertions that the waste coal plants 
should regulate differently.
    Were these challenges successful?
    Mr. Walke. They were not because the assertions were found 
to be unfounded.
    Mr. McNerney. Well, based on your response then there 
appears to be no justification for allowing these facilities to 
emit more pollution than other similar facilities.
    Mr. Walke. We certainly do not believe so, especially 
because we are talking about hazardous toxic air pollution and 
we are talking about pollution control devices that are both 
available and in use today.
    Mr. McNerney. Quickly, the results of this legislation 
would be, in my opinion, that other power plants in a given 
state covered by the CSAPR would have to drastically cut their 
emissions to make up the differences. Is that appropriate?
    Mr. Walke. That is a strange paradox of the bill. They 
favor waste coal plants by requiring all other coal-burning 
plants in a state with waste coal plants to give up quite 
valuable assets, these sulfur dioxide allowances that can be 
traded or sold or used at a later time.
    So it's a zero sum game and the bill takes it out of the 
hide of remaining coal plant operators.
    Mr. McNerney. Very good. Thank you, Mr. Chairman.
    Mr. Whitfield. The gentleman's time has expired. At this 
time the chair recognizes the gentleman from Illinois, Mr. 
Shimkus, for 5 minutes.
    Mr. Shimkus. Thank you, Mr. Chairman. It's a great hearing 
to have and it's unfortunate we have two different--same but 
two different because I would like to get in depth on both of 
them and I want to try to.
    First, to Mr. Henry and Mr. McAvoy, thank you for creating 
jobs and livelihoods. Mr. McAvoy, what's your payroll 
approximately? I know you probably don't have those numbers in 
front of you.
    Mr. McAvoy. About a million dollars.
    Mr. Shimkus. How much taxes do you pay?
    Mr. McAvoy. You mean federal or whatever?
    Mr. Shimkus. Federal, state. Illinois has property taxes.
    Mr. McAvoy. Well, property tax I think to the school 
district I think we're, like, $60,000 a year. We're a 
subchapter S corporation so I don't have a federal number.
    Mr. Shimkus. And how about health care benefits that you 
provide?
    Mr. McAvoy. About $20,000 a month or more.
    Mr. Shimkus. Right. And these are bargain--you got--your 
hourly folks are bargained, correct?
    Mr. McAvoy. Yes.
    Mr. Shimkus. What's the union?
    Mr. McAvoy. Steelworkers.
    Mr. Shimkus. OK.
    Mr. McAvoy. Steelworkers.
    Mr. Shimkus. So, again, those are always important aspects 
to debate because in my opening statement the greatest driver 
of health concerns to our population is poverty.
    So it's an important debate to have to how much you push on 
emissions for the sake of health when you drive people into 
poverty or you cause them to lose their jobs or you put them on 
the welfare state. So I want to continue. Thank you for 
fighting for that aspect.
    Mr. Walke, and I appreciate you being here and I know the 
organization and association and you laid out a compelling case 
on technology in the SENSE Act. But you didn't make another 
credible defense of technology in respect to the BRICK Act. In 
fact, you said nothing about the BRICK Act. Can you tell me 
why?
    Mr. Walke. Sure. I was invited to testify about the SENSE 
Act. I have some familiarity with the Brick rule and I related 
some of that.
    Mr. Shimkus, I will try my best to answer your questions 
but I didn't prepare a written testimony.
    Mr. Shimkus. OK. Because obviously the brick industry--the 
debate is also rules, regulations we tried to meet. Now they're 
changing the rules. Now we may not be able to meet it.
    So if you would, that would be helpful to me if you would 
come because it's just important in this debate, the cost 
benefit analysis.
    Let me go to the--kind of segueing now to the SENSE Act. 
Back to you, Mr. Walke. I mean, those photos that was put up by 
I think Mr. Brisini are fairly compelling on reclamation and 
reuse.
    But in your opening statement you also said I am not going 
to dispute or discuss--you didn't want to talk about those 
benefits. Why not?
    Mr. Walke. I wasn't disagreeing with those benefits is what 
I meant to say.
    Mr. Shimkus. So that is part of this debate. If there are 
benefits and you all accept that premise, can't we get to how 
do we incentivize this that's beneficial to the health and the 
environment of our citizens based upon those very compelling 
photos?
    I think part of the SENSE Act is let's help each other. 
Let's help clean up the environment but let's give a benefit 
for the reuse so that this can happen in an affordable--I think 
the other compelling thing Mr. Beck had mentioned was the 
reclamation of this site the cost could have been $60 million 
and ended up being $4 million. From a taxpayer's perspective, 
that's hard to argue--the benefits.
    Mr. Walke. And I am not. I have three specific ideas. I am 
going to use Pennsylvania as an example. The state officials 
can do today without needing to resort to a lot of the----
    Mr. Shimkus. But they have to take from emissions of 
current operating facilities. I mean, so if there's a set 
standard and then you penalize--you know, we don't incentivize 
this and they give them the credits that then the proposals 
will take away from other operating facilities.
    I need to go to, and I apologize because we really don't 
have much time, I want to give Mr. Brisini a chance to respond 
to some of the claims Mr. Walke made as far as the litigation--
Bush administration and a response. Could you do that for me?
    Mr. Brisini. I would love to, thank you.
    Let's talk about MACT. What MACT did in that regulation EPA 
lumped two groups. They said you're coal or you're lignite. 
There was no differentiation between coal refuse and I believe 
they kept coal refuse because of the exact reason Mr. Walke 
mentioned.
    We are extremely low emitters of mercury. So they need to 
lump them in to the larger group so they can force the lowest 
mercury limit on the coal-fired plants. Also, we are extremely 
low emitters of particulate matter. They use a nonmetal mercury 
particulate alternative standard. Again, we helped set the bar 
lower for the other plants. But once we got drug in to allow 
that to happen, at that point we have HCL.
    I do not agree with what he said around these plants being 
able to meet hydrochloric acid. There are actually two 
bituminous plants that can meet the hydrochloric acid. No other 
plants, whether they are bituminous coal refuse or anthracite 
coal refuse, they don't do it.
    One is the last plant built in 2004 and there is a 
particularly unique sulfur dioxide control system which as a 
co-benefit happens to control hydrochloric acid. The other unit 
happens to burn coal refuse that doesn't have chlorine. In 
fact, to control mercury at that plant you need a halogen, be 
it chlorine. They use bromine and that is how they are able to 
capture the mercury because you can't capture mercury unless 
it's oxidized. You can't oxidize the mercury unless there's a 
halogen present.
    Now, as far as the authority to exempt or I can do a 
surgical reallocation tomorrow, no, they can't. This is a FIP. 
This is a federal implementation plan, and to change that 
federal implementation plan you need a new state implementation 
plan.
    EPA has up to 18 months to respond to a federal 
implementation plan change. So the idea that I can come in 
there and fix this tomorrow is not true and I will say it that 
bluntly.
    Now, as far as increasing emissions and having emissions 
increased, no. We preserve the budget but we don't take 
anything away from an operating unit. There are a considerable 
number of units that have been retired in both Pennsylvania and 
in West Virginia that these are the source of the allowances. 
We do not increase the cap developed by EPA for Pennsylvania 
for SO2. We simply say let's reallocate from the 
retired units. So units that are sitting there with this stuff 
that no longer provide jobs, no longer provide tax base, no 
longer provide the things that they previously provided. But we 
don't say take them all away.
    In Pennsylvania, the reallocation split would be 65 to 35. 
In West Virginia, they would retain 86 percent of the 
allowances and the bituminous refuse plants would get 14 
percent of the allowances. So there's a fundamental issue. Now, 
as far as the--there are some plants that are meeting the 
alternative sulfur dioxide standard. Yes, that is true. They 
are the anthracite plants. They have low sulfur coal refuse.
    Mr. Whitfield. Thank you, Mr. Brisini. We get into this 
issue when--I always like to give people an opportunity to 
answer, particularly when they're asked the question with about 
four seconds left in the--it's an art.
    So thank you for your comments and particularly that part 
about states being able to immediately give you an exemption.
    Mr. Doyle, you are recognized for 5 minutes.
    Mr. Doyle. Thank you, Mr. Chairman.
    I just want to maybe just go a little further with that, 
Mr. Brisini.
    You acknowledged that some of these coal refuse plants that 
burn bituminous coal--even some that burn bituminous coal are 
able to meet MATS and CSAPR and they have not asked for an 
extension to comply with the regs. You imply in your testimony 
that is so because they are burning low sulfur bituminous coal 
refuse. Are there any other distinguishing features at these 
plants that are able to comply? Are there any technologies that 
other plants could adopt to mitigate the release of these 
pollutants and comply with the standards?
    Mr. Brisini. The circumstance you have is that there is one 
bituminous plant that meets the HCL. They cannot meet--because 
they are a bituminous plant they can meet the HCL but they 
cannot meet the current alternate SO2 limit. The 
other plants that can meet the alternate SO2 limit 
are anthracite refuse plants in the eastern part of the state 
but they don't meet the hydrochloric acid limit either. Only 
one other plant does and there is not chlorine in the coal 
refuse that they burn.
    Mr. Doyle. So you are saying that there are no new 
technologies that are available that would allow them to 
comply?
    Mr. Brisini. I suppose that there would be a way. But we 
looked at a number of things to try to do that including the 
ejection of additional limestone. But it ultimately ends up in 
increasing of mass emissions. And something else that happens 
is that there is varied sulfur content in the coal refuse piles 
in the bituminous region that can get even higher. To simply 
pick a number and not look at a performance-based standard for 
removal would eliminate the opportunity to pursue the highest 
sulfur coal refuse piles to reclaim them and they probably have 
the highest level of acidic discharge with the greatest 
negative effect on a waterway.
    Mr. Doyle. Couldn't some of these plants add another type 
of fuel or make the waste coal their secondary fuel source so 
that it reduces the sulfur or HCL and helps them comply with 
the standards?
    Is there an alternative way to deal with this?
    Mr. Brisini. Not really, no. Not from the standpoint of 
entering a different fuel. You can't start burning--number one, 
there is limitations by virtue of financing and other issues 
that these coal plants are obligated to burn at least 75 
percent coal refuse. There is also--as you go through there is 
chlorine in the coal that's also burned. But there is--you 
can't dilute it. Plus, you are also limited into the calorific 
value that can go into a fluidized bed combuster. For example, 
the most recent one built, and as they build them they build 
them to be able to burn lower and lower quality coal refuse, 
the older ones that were built require--they burned or designed 
to burn about 6,800 BTUs per pound for their heat input for 
their fuel. The most recent one built is at 5,500 and coal is 
generally 12,000 to 13,000 BTUs.
    Mr. Doyle. OK. Thank you. I want to ask Mr. Walke, too.
    Mr. Walke, I understand and appreciate your concern that 
states maintain their rights under the Clean Air Act. But you 
know, in my state, particularly in Pennsylvania, many elected 
officials strongly value these coal refuse plants on both sides 
of the aisle, I might add, and our own DEP, Pennsylvania's 
Department of DEP, submitted official comments to the EPA 
urging special consideration of the coal refuse-fired 
facilities under CSAPR. In their comments they explain the 
importance of these facilities to restoring the environment and 
preventing acid mine drainage. They ultimately concluded that 
constructing a rule that results in the closure of these 
facilities will have significant impacts on my state's ability 
to restore these mine-affected areas to benefit our state and 
our downstream neighbors.
    What do you recommend the Pennsylvania DEP should do, going 
forward?
    Mr. Walke. Congressman Doyle, thank you for your thoughtful 
question and I did read those very thoughtful comments by the 
Pennsylvania DEP. Several things that can be done and some of 
them are actually mentioned in the letter. States today have 
the authority to differently allocate allowances within the 
emitters in their state. They can do it to other coal-burning 
electric utilities. They can do it to non-electric sector. They 
have the full array of choice about how best to achieve those 
reductions cost effectively.
    So if Pennsylvania wants to incentivize a waste coal energy 
production, they can do so by reallocating sulfur dioxide 
allowances within the electric sector. They can do a mix within 
the electric sector----
    Mr. Doyle. So they would have to submit a new SIP. Is that 
what you are saying?
    Mr. Walke. I did not mean to suggest and maybe I did by 
using tomorrow that this could be accomplished by midnight 
tomorrow. Clearly, not. But there are----
    Mr. Doyle. It sounded that way when you said it.
    Mr. Walke. Yes. Well, I apologize for that impression.
    The state has the authority to design their own plan to 
allocate things differently than the federal model. They have 
the option not to do that.
    Mr. Doyle. So that gets them though CSAPR but how does that 
get them to comply with MATS?
    Mr. Walke. That's an excellent question. So you actually 
hit upon some of it yourself. There are plants in West 
Virginia, for example, that are using waste coal as a secondary 
fuel that are installing scrubbers and meeting the standard. 
They will do so by April. There are Pennsylvania plants who 
have told the state that they will undertake limestone 
injection in order to satisfy the standard. EPA found that 
there are scrubbers that can reduce emissions by 96 percent of 
sulfur dioxide.
    The bill, of course, weakens that standard. So there are 
waste coal plants across the country complying with the 
standard or that will be complying with the standard with off-
the-shelf technology that is available and EPA and the courts 
have both found that to be the case.
    Mr. Doyle. Mr. Chairman, thank you for your indulgence.
    Mr. Whitfield. Yes, sir. And at this time the chair 
recognizes the gentleman from Ohio, Mr. Latta, for five 
minutes.
    Mr. Latta. Well, thank you, Mr. Chairman, and thanks for 
conducting today's hearing, and to our panel thanks very much 
for your testimony today. It's very enlightening.
    If I could just start maybe between Mr. Henry and Mr. 
McAvoy to ask you some questions about the brick industry in 
general. Are bricks made all over the country? Are they 
regionalized? Where are most bricks being made at today?
    Mr. Henry. I am sorry. What was the----
    Mr. Latta. Where are the bricks being made at today? Is it 
regional or all over?
    Mr. Henry. Predominantly in the southeast and up through 
the Atlantic east coast but there is brick plants located all 
over the country.
    Mr. Latta. The next question I have is because bricks 
aren't light. They are pretty heavy. So I was just thinking on 
the transportation costs, we are looking on the transportation, 
how far you have to get to transport those bricks. And the 
question on the transportation costs, of course, when you look 
at the weight and the costs there, when you are having these 
costs being associated with the EPA coming down on you, you are 
going to have to pass those costs on. I would assume you are 
doing that.
    So Mr. McAvoy, you are shaking your head. If you would like 
to comment on that.
    Mr. McAvoy. Yes, it is another burden cost that is going to 
have to be either absorbed by us or our customers or a 
combination of the two.
    Mr. Latta. Well, again, when you are looking at, absorbing 
by you because, with the--I am not sure exactly what your 
margins are.
    But you are going to have to somehow get that cost down to 
the--on the construction industry but then that is going to be 
cost passed on to the owner, then. It's going to be that 
homeowner out there that wants to build a new house that's 
going to have to pay more cost for the brick. Or if you are a 
hardworking American out there that wants to build a new 
factory or plant or some type of business that they are going 
to be using some type of brick product that is going to have to 
be added into that cost, I would assume.
    So just in general if you could give me an idea of maybe 
over like the last since these regulations have come on which 
you have seen that you might see an average cost of a brick 
going up that would be passed on then to the ultimate consumer 
of that brick.
    Mr. McAvoy. Do you want a specific number?
    Mr. Latta. Or just an approximate, if you can do that.
    Mr. McAvoy. It would all depend on what kind of scrubber or 
whatever we put in. There are different options.
    Davis might be able to answer that since you have been 
running one. How much more did that add to your cost?
    Mr. Henry. Well, you would like to think you could pass on 
all these costs to your customers and we certainly try. A lot 
of it does end up with us and it reduces your margins, makes it 
harder to reinvest and continue your business.
    But those you can't pass on it is probably in the dollars--
dollar or two per thousand range. It's not a--you can't pass on 
all of it. How about that?
    Mr. Latta. Right. Let me ask this, Mr. Henry, if I could. 
The EPA estimates that this rule would have an annual cost in 
the neighborhood of $25 million while the Chamber of Commerce 
report cites industry estimates as high as $100 million.
    Would you like to comment on that difference between--if 
you have any knowledge on that from the EPA estimate of $25 
million to the Chamber estimating at $100 million, how--we are 
talking $75 million. That's quite a bit of difference there.
    Mr. Henry. Well, based on Henry Brick itself, for us to 
comply with the new MACT is going to cost one company $8 
million and there's a lot more than one brick company around. 
So I would say it's probably in the--closer to $100 million 
versus the $25 million.
    Mr. Latta. Mr. McAvoy?
    Mr. McAvoy. The EPA's numbers have a lot of assumptions 
that we have problems with. You know, they are just doing a 
guess. They don't have the exact data. We feel that we have 
better data and that the cost will be higher than what they 
project.
    Mr. Latta. Where does the EPA get their data from that they 
are coming up with that estimate of $25 million?
    Mr. Henry. I don't know. I don't know.
    Mr. Latta. OK. Mr. Brisini, if I could ask you a quick 
question with my last 35 seconds. I'll try to be better than 
the gentleman from Illinois with only four seconds.
    Are coal refuse-to-energy facilities typically located in 
smaller communities? Are these coal refuse-to-energy facilities 
typically located in a smaller community or a larger community?
    Mr. Brisini. The coal refuse plants are located in small 
communities. They are extremely important to the small 
communities. In the case of the three bituminous coal refuse 
plants that are near where I live in Edensburg, it is the 
county seat of Cambria County. It is less than 4,000 people 
population.
    Mr. Latta. Thank you very much.
    Mr. Chairman, I see my time has expired and I yield back.
    Mr. Whitfield. Thank you, Mr. Latta.
    At this time I will recognize the gentleman from Texas, Mr. 
Green, for 5 minutes.
    Mr. Green. Thank you, Mr. Chairman and ranking member, for 
holding the hearing today. I want to thank our witnesses for 
coming and testifying.
    Mr. Beck, in 2014 the Pennsylvania Department of 
Environmental Protection submitted comments to the 
Environmental Protection Agency. In these comments, the 
Pennsylvania DEP requested an exemption for coal waste 
facilities. DEP further recommended EPA establish a subcategory 
for waste coal technology.
    Can you offer your thoughts on why your state agency 
submitted these comments? Oh, Mr. Beck, you're chair of the 
coalition of abandoned mines. Why did your state environmental 
agency submit those comments?
    Mr. Beck. Why did they what?
    Mr. Green. Why did they submit those comments about 
recommending the EPA establish a subcategory for waste coal 
technology? Your state environmental agency submitted comments 
to EPA and was there any reason for it or did they do research?
    Mr. Beck. Mr. Brisini worked for DEP too so I think he----
    Mr. Brisini. I can explain. I can explain, and it gets back 
to the point I made about how they did MACT. When EPA did MACT 
they did not----
    Mr. Green. Could you pull the mic a little closer?
    Mr. Brisini. Yes, sure. They did not establish separate 
categories for coal refuse or different types of coal, 
anthracite coal or bituminous coal. They turned it into two 
categories--lignite, everybody else.
    So the point that was being made is to appropriately 
address and prepare appropriate standards for the coal refuse 
plants you should look at the emissions that are achieved by 
the coal refuse plants. That's how you do a MACT regulation. 
You look at the top 12 percent of the performing existing 
facilities and you pick from those numbers. That's exactly why 
they put them together though because they wanted the mercury 
number to be as low as possible.
    Mr. Green. Most of the testimony offered today highlights 
the environmental benefits of the coal waste technology. In 
2011, however, the Clean Air Council submitted comments to the 
EPA stating the more environmentally friendly way of dealing 
with waste coal would be more cost effective as well. Can any 
of the panel comment on the Clean Air Council's proposal to 
plant, for example, beach grass and if their comment holds 
true?
    Mr. Brisini. Well, we have tried to investigate the beach 
grass claim and what they did, and I have only ever been able 
to find an overview of the study--I have never found the study, 
I have never found background information on the particular 
pile they wanted to introduce the beach grass to. The 
fundamental premise of that study is they want to introduce 
beach grass and it will grow for a period of time and then they 
will start to repopulate and then other native species will 
overtake the refuse pile. We don't believe that that addresses 
the issue because it doesn't address percolation, surface 
runoff and it doesn't prevent future fires from occurring 
within the piles because a coal refuse fire does not start on 
the top by somebody throwing a match on it. It starts from the 
inside. In my written testimony, I provided a coal refuse white 
paper that discusses refuse fires and those sorts of things. 
But no, we do not believe beach grass is any solution.
    I kind of look at it as, if somebody's coming and you want 
to clean up the house so you throw the stuff in the closet.
    Mr. Green. OK. Mr. Walke, in your testimony you cite White 
Stallion and in that case the D.C. court states, among other 
things, that EPA notes that CFBs were among the best and worst 
performers of various pollutants.
    Is the technology and retrofitting the difference between 
the best and the worst in the categories discussed by the D.C. 
court?
    Mr. Walke. Well, the D.C. court upheld EPA's standard in 
all respects and that finding wasn't challenged by the Supreme 
Court with respect to the standards themselves and the 
achievability of the standards and the propriety of the 
emission limits. The EPA did create a separate subcategory for 
the lignite coal in your state, Congressman Green, and there 
are technologies that are more appropriate to lignite. But the 
court specifically rejected a challenge by the trade 
association for the waste coal industry and said EPA was 
correct not to have established a subcategory for waste coal, 
and then Pennsylvania DEP asked EPA to reconsider that after 
the failed court challenge.
    Mr. Green. Mr. Chairman, in our district you heard over the 
years I have five refineries that generate tons of petroleum 
coke that we can't burn and we're lucky enough to have a ship 
channel where we load it onto a ship and send it to Africa, 
India, wherever else. That is not possible in Pennsylvania 
because the rail cost of the transportation to somewhere would 
be, I guess, huge and so economically disadvantaged. Is that 
correct?
    Mr. Walke. I think that's correct and it is important to 
note where there is agreement here. I am not arguing that we 
shouldn't be able to combust this and they are not arguing that 
they shouldn't have to control emissions. What we are arguing 
about is whether the standards that have been issued by EPA and 
upheld by the courts and that are being achieved today and that 
will be achieved with available technology should be weakened 
by this bill or allowed to continue.
    Mr. Green. Thank you, Mr. Chairman.
    Mr. Whitfield. At this time, the chair will recognize the 
gentleman from West Virginia, Mr. McKinley, for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman.
    I suppose I really want to just address the SENSE Act over 
the coal refuse legislation. I am trying to take it from a 
little bit different perspective, maybe from 30,000 feet and 
that is all these new standards.
    Just imagine the less--there will be so much less acrimony, 
differences of opinion, particularly back to you, Walke--if 
these were applicable only to new construction.
    If a new coal refuse facility had to be constructed it has 
to follow these new standards. What I find offensive here in 
Washington is these new standards are put together and then 
they are applied retroactively back to existing facilities.
    I come from the construction industry and I can just assure 
you right now that the Cannon Office Building doesn't comply 
with all the proper air quality--indoor air quality standards. 
It is laden with asbestos but yet we don't go back and make 
them retroactively address that unless we are going to do a 
major renovation. This room in and of itself also doesn't 
comply with indoor air quality standards of air turnovers. 
Neither does the Cannon Office Building.
    The Capitol building doesn't comply. But yet we are allowed 
to continue to use it. We walk across floor tile that's laden 
with asbestos. We have got asbestos in our plaster walls and it 
is OK. But yet you go after a coal refuse energy facility and 
say these new standards, you have to go back and retroactively 
do that.
    I just think it is disingenuous the way we approach some of 
these things and I think it's a disservice to the taxpayers and 
anyone else when we apply--in your words, picking winners and 
losers. In schools and office buildings, we don't make them go 
back and retroactively do that but yet we are doing it to 
industry. We are doing it to the coal industry and I am 
troubled with that and I just know that we'd have a lot less 
acrimony--I think we could get along with a lot of our 
regulations if we imposed a new reg only applicable to a new 
power plant, not to go back and shut them down.
    And I am a little concerned because I'm hearing from 
testimony from the--and reading the document that when we have 
two facilities in my district in West Virginia, they are going 
to shut down under these standards and we are treating as 
though as they are not being truthful.
    They can do it. I guess they can if they can get the money 
to do it and people are willing to pay the additional cost of 
energy that they are going to create as a result of that, and 
apparently what they have found out is that there is no 
interest in that. The people that are consuming don't want to 
pay that so they are going to close down and we are talking 
about in these two over $3 million in taxes that will be lost 
as a result. Sixty percent of that in West Virginia goes for 
schools.
    We just cut out another $1.8 million, almost $2 million 
from our schools in West Virginia to accomplish something that 
should go forward, not retroactive. What are we thinking about 
when it comes to that?
    I go to you, Walke. Is it more responsible to say go ahead 
into the future? Wouldn't you find we would have more common 
interests if we used common sense to apply these regs, whether 
it's new source performance standards? All of this and this, 
wouldn't it be better if we just applied it to new construction 
rather than old construction?
    Mr. Walke. Congressman, thank you.
    I don't think so and when the 1990 law was passed----
    Mr. McKinley. So do you think we should shut down the 
Cannon Office Building then and make sure everyone leaves here 
because we're not in conformity with the standards that have 
been adopted across this country.
    Mr. Walke. So this clean air program was promoted for----
    Mr. McKinley. But this is indoor air quality, though, 
Walke. That's what I'm talking about. You're subjecting all 
these people to have indoor air quality that is detrimental to 
their health. We spend 90 percent of our time indoors and we 
are not complying with the indoor air quality standards. But we 
allow that to continue because we understand the problems there 
would be if we tried to retroactively address old buildings.
    Why aren't we looking at it into the future? Don't you 
think--my time is over--I am going to submit that if we made it 
effective to new construction, new brick plants, new coal to 
refuse, coal energy, that we would not have this problem right 
now--that they would be designed accordingly and they would be 
built into the cost. But to do this retroactively is not common 
sense, and I yield back my time. Thank you.
    Mr. Whitfield. At this time, the chair will recognize the 
gentleman from New York, Mr. Engel, for 5 minutes.
    Mr. Engel. Thank you very much, Mr. Chairman.
    Mr. Walke, I have a series of questions I would like to ask 
you. One of them was touched on when you had an exchange with 
Mr. Doyle so I would like to ask you to emphasize certain 
things. We have heard testimony today that all waste coal 
plants can meet the mercury standard under MATS but many cannot 
meet the hydrogen standard or the sulfur dioxide standards.
    Firstly, do you agree with that assessment and in your 
answer if possible could you discuss the D.C. circuit court's 
decision in White Stallion Energy Center versus EPA?
    Mr. Walke. Certainly. Thank you, Congressman.
    Let me take those one by one. One thing that hasn't come 
out yet at this hearing is that one of the reasons waste coal 
plants are meeting the mercury standard and the particulate 
matter standard is they qualified for an exemption--a low-
emitter exemption where they are not actually--I mean, I guess 
you could call that meeting the standard but they qualify for a 
low-emitter exemption, which I think is appropriate.
    Other plants have coal waste profiles or controls in place 
to achieve compliance. It is simply incorrect to suggest that 
coal waste plants burning any type of coal waste are incapable 
of achieving either the HCL or the SO2 standard in 
the existing MATS rule.
    The court rejected that claim. EPA has rejected that claim. 
What you have here is a case of, you know, if I can say so, 
special pleading to Congress to try to overturn those findings. 
We have applications submitted from coal waste operators 
announcing the controls they are going to install.
    We have controls that are going to go into a place by April 
of this year. We have controls on plants already that are being 
operated.
    So when the D.C. Circuit in its decision heard the full 
legal arguments from the trade association for waste coal 
operators and looked at all the evidence they presented and the 
evidence in the administrative record that EPA had compiled, 
they squarely rejected those claims in a three to nothing 
decision and that decision was left untouched by the Supreme 
Court in that relevant respect.
    Mr. Engel. Thank you.
    Janet McCabe, the acting assistant administrator for the 
Office of Air and Radiation of the EPA, submitted a written 
statement for today's hearing.
    She says that the bill we are discussing today would remove 
the economic incentives to reduce emissions at waste coal 
plants because emissions allocations for those plants could not 
be traded under the cross-state air pollution rule, or CSAPR.
    She argues that the result would be less efficient and more 
costly compliance with CSAPR. Do you agree with her assessment?
    Mr. Walke. Absolutely. She is just describing the mechanics 
of the program.
    The units that retired that were referred to by one of my 
fellow witnesses generated valuable allowances that are held by 
those coal operators and that can be used by those plants or 
that can be traded.
    And yet this bill would take them away. It would do the 
same for plants that converted to natural gas. There is a very 
robust market in tradeable allowances that was created by the 
1990 law and then continued in other forms and it is just 
inescapable that the design of this bill would take away those 
valuable assets from coal plant operators in Pennsylvania, West 
Virginia and elsewhere and simply transfer them to waste coal 
operators who want to pollute at higher levels than the law 
today allows.
    Mr. Engel. You mentioned that Section 2(b) of this bill 
would interfere with a state's rights to determine how to best 
comply with the requirements of EPA's cross-state air pollution 
rule and favors waste coal burning plants over other in-state 
power plants.
    So this bill takes long-standing state authority, transfers 
it to the federal government and then uses that authority to 
pick winners and losers. Is that right and can you explain?
    Mr. Walke. That is right and I find it a particular paradox 
for sponsors whose voting records in the past have suggested 
such strong support for states' rights.
    The law today is even handed with respect to the decisions 
that state officials may make about how to allocate those 
allowances and states make their own decision.
    This disrupts that and for the first time in any interstate 
legislation I have ever seen takes it away from the states and 
paradoxically transfers it up to Washington to override the 
ability of those states to make different allocation decisions. 
It is just puzzling.
    Mr. Engel. All right. Thank you. Thank you very much, Mr. 
Walke. Thank you, Mr. Chairman.
    Mr. Whitfield. Mr. Brisini, you want to make a comment?
    Mr. Brisini. I sure do. Thank you very much.
    I find it really interesting that we keep hearing this--
well, this SENSE Act picks winners and losers when in fact the 
federal implementation plan picked the winners and losers and 
they happened to pick in CSAPR the bituminous coal-fired refuse 
plants to be the losers in the CSAPR phase two allocation.
    And they also picked the bituminous coal-fired refuse 
plants to be the loser in MATS because, as I have said all 
along, the anthracite refuse plants can meet the alternative 
0.2 standard.
    That is because the sulfur content of the coal refuse in 
the anthracite region is lower. It is not because the 
technology is different or they have anything special and it is 
part of the problem when you lump all of these things together 
not recognizing the technical and the differences in these 
kinds of fuels.
    Mr. Engel. OK.
    Mr. Brisini. Now, as far as the idea that they are usurping 
states' rights I find that interesting because the federal 
government just did that in the FIP.
    If you go on to read the Pennsylvania DEP comments, you 
will often find in the comments what happened to cooperative 
federalism and that is really one of the arguments you have 
then.
    Mr. Whitfield. Mr. Brisini, I gave you a chance to respond 
there but I need to recognize Mr.----
    Mr. Engel. I was going to ask, Mr. Chairman, if perhaps Mr. 
Walke could respond to something that Mr. Brisini----
    Mr. Whitfield. I will tell you what. Let me finish with 
these two and then what we will do we will let Mr. Walke and 
Mr. Brisini sit next to each other and then we will go at it 
some more.
    At this time, I will recognize Mr. Johnson of Ohio for 5 
minutes.
    Mr. Johnson. Thank you, Mr. Chairman, and I appreciate so 
much the panel being here today. Very important issues we are 
talking about--the health of an industry, jobs, our economy. 
Very important.
    Mr. Henry or Mr. McAvoy, can one of you talk more about the 
ability to get a loan for a control device to comply with the 
EPA's MACT? I mean, if you had to get one of these loans how 
would it affect your employment level at your facility?
    Mr. McAvoy. It would greatly affect it because we probably 
couldn't obtain the loan and even if we were able to structure 
it in such a way that we could make payments, the cyclical 
nature of our industry and so forth, you know, would probably 
cause us to default at some point in time.
    Mr. Johnson. OK. Mr. Henry?
    Mr. Henry. The one thing that makes it really hard at this 
current juncture is that we have been through a very rough 8 
years. I don't think anybody in the brick industry would say 
they have enjoyed the last eight years.
    And so our balance sheets reflect that and so to go and try 
to secure a loan now and look a banker in the face and go, 
well, here are my financials----
    Mr. Johnson. Sure.
    Mr. Henry [continuing]. I need $7 million or $8 million, 
there is not a bank out there that would look at ours and feel 
very good about being paid back.
    Mr. Johnson. Right. Well, there's this status of a 
synthetic minor. You are able to get underneath the caps and 
that you would be then given some relief from some of this.
    But how would that affect--let us say you were to be 
identified as a synthetic minor. How would that affect the 
company's ability to grow?
    Mr. Henry. That is a very good question. We have two plants 
that are side by side in Selma and if we became a synthetic 
minor we would no longer have the ability to grow in our local 
community. If we grew we would have to grow outside of that 
area.
    Mr. Johnson. So basically that limits your ability to 
create jobs and provide economic growth in your community. For 
both of you again, Mr. Henry and Mr. McAvoy, how would this 
particular legislation that we are talking about, the BRICK 
Act, be helpful?
    I mean, considering that the industry has already spent 
hundreds of millions to comply with a similar EPA rule in the 
past only to have the courts vacate the rule a few years later, 
how would the BRICK Act be helpful?
    Mr. Henry. I would say first we all want to do our part in 
the industry to be good to the environment. We want to do that.
    But there is only finite resources we have to spend on that 
and what we don't want to have happen is have another rule 
vacated or the baseline change and we have spent a lot of money 
unnecessarily to comply with a rule that may not take effect or 
be changed down the road and it is a lot of money to spend not 
knowing that it is necessary.
    Mr. Johnson. So letting the judicial reviews and letting 
the process play out before you have to comply certainly would 
be financially more acceptable to your industry?
    Mr. Henry. Certainly. We would know exactly what we had to 
do. We would have 3 years to comply with the final, final rule 
and make sure that we don't waste resources.
    Mr. Johnson. OK. Mr. Henry, continuing with you, the study 
that you attached to your testimony states that foreign 
competition in the brick industry has not been a factor in the 
past. Is that correct?
    Mr. Henry. Foreign competition as far as importing brick 
from other countries, no.
    Mr. Johnson. And can you explain why that is not a factor?
    Mr. Henry. Brick weigh a lot. They cost a lot to ship.
    Mr. Johnson. Sure. I knew that but I wanted the rest of the 
committee to understand that.
    How might this unique situation--that is, the relative 
absence of foreign competition coupled with the EPA's rules 
which threaten the very survival of many of the family-owned 
brick plants across America, how would this affect the future 
availability of U.S. brick?
    We don't have any coming in imported. If you guys go out of 
business and can't produce brick, are we back to building 
buildings with sticks and straw?
    Mr. Henry. Or vinyl or something, yes. The brick industry 
is very expensive to get into not only because of the control 
devices but just the process itself is. And so there would not 
be a lot of newcomers to our industry, if I had to guess.
    Mr. Johnson. All right. All right.
    Mr. McAvoy, my time has expired but if we could--go ahead.
    Mr. McAvoy. My guess what would happen is the few 
multinational brick companies that have access to capital and 
so forth would be there----
    Mr. Johnson. To fill that void. Yes.
    Mr. McAvoy [continuing]. In the market and the small----
    Mr. Johnson. So it would be other countries that would 
benefit from----
    Mr. McAvoy. Yes. They wouldn't be made overseas but 
definitely the profits would be going there.
    Mr. Johnson. All right. Another example of policies that 
enable our competitors overseas, Mr. Chairman. I yield back.
    Mr. Whitfield. Thank you. Thank you.
    At this time the chair recognizes the gentleman from New 
Jersey, Mr. Pallone, for 5 minutes.
    Mr. Pallone. Thank you, Mr. Chairman. I wanted to ask Mr. 
Walke a series of questions.
    The SENSE Act would give coal refuse facilities special 
consideration under the cross-state air pollution rule, or 
CSAPR, and EPA issued this rule to protect the health of 
millions of Americans by reducing air pollution and requiring 
states to reduce power plant emissions that cross state lines 
and contribute to air quality problems in other states.
    CSAPR ensures that downwind states don't have to impose 
more stringent controls on local businesses to make up for the 
effects of increased out-of-state pollution and the rule 
achieves all this by creating economic incentives to reduce 
pollution from power plants.
    So Mr. Walke, if enacted how would the SENSE Act impact the 
operation of the CSAPR program? Would pollution reductions 
still be incentivized?
    Mr. Walke. No, certainly not. Well, what the SENSE Act does 
is it establishes these static permanent higher pollution 
levels for sulfur dioxide available just to waste coal plants 
and everyone else has to make the accommodating reductions 
whether that is in your downwind state of New Jersey, 
Congressman Pallone, or within the State of Pennsylvania 
itself.
    And there is available technology in the form of scrubbers 
to meet the lower sulfur dioxide limits in the cross-state rule 
and in the mercury and air toxics rule and you have plants that 
are either operating that equipment today or installing it.
    And so this it is just kind of a raw political transfer 
from one sector to another after that sector suffered losses in 
courts when its arguments on the merits were not successful.
    Mr. Pallone. OK. Now, some of today's testimony 
characterizes the CSAPR provisions in the SENSE Act as merely 
correcting errors in how the EPA set up the CSAPR rule.
    But I wanted to ask you are coal refuse facilities 
different than traditional coal facilities? Should EPA have 
treated them differently under the CSAPR rule?
    Mr. Walke. Well, certainly they are different in the fuel 
they burn but just as lignite and bituminous and anthracite and 
other types of facilities are.
    What Congress said in 1990 in a law that was actually voted 
on by Congressman Barton. What they said is that you are 
supposed to look at the best performers and the best 
performance and EPA found that waste coal plants met that 
criteria with respect to the HCL emissions that we are talking 
about here today.
    I don't disagree with my colleague about mercury and 
particulate matter but that is not what this bill is about. It 
is about HCL and sulfur dioxide relaxations under the cross-
state rule and the mercury rule.
    There is available technology to meet those standards and 
that is really not disputed in the rulemaking record or the 
judicial record and I haven't seen any testimony today that 
actually overrides EPA's conclusion that scrubbers can meet 96 
percent control reductions that will satisfy these standards 
and that there are plants today that are meeting those 
standards sometimes with lime injection being used as well.
    But the coal sector has been reducing these forms of 
pollution for 40 years in this country and that is no different 
than a boiler that is using what we call waste coal.
    Mr. Pallone. All right. Well, if a state wanted to treat 
coal refuse facilities differently, do they have that ability 
to do so under the EPA rule?
    Mr. Walke. They absolutely do. That has been the hallmark 
of the interstate program since its inception in 1977 that they 
have the first crack and in fact the final crack if they want 
to take it.
    What is really instructive after all this talk that we have 
been hearing of how much of a burden it is to coal waste plants 
that should be incentivized, there is not a single state in the 
country covered by the cross-state rule that departed from the 
formula that EPA adopted for allocating allowances.
    Why is that? Because EPA used a formula that was based upon 
highly cost effective reductions. And so the power generators 
in all of those states including states with waste coal plants 
didn't want that formula disrupted.
    Now, the waste coal plant operators did but they did not 
prevail in Pennsylvania or West Virginia. Their state officials 
made different decisions. They could change that decision and 
EPA would approve that change.
    Mr. Pallone. So, are the CSAPR provisions in the SENSE Act 
even necessary?
    Mr. Walke. No, they are not necessary and I read EPA 
Administrator McCabe's statement and I believe she uses that 
exact word. They are unnecessary.
    If the State of Pennsylvania wants to reallocate allowances 
along the lines in the SENSE Act and to take them away from in-
state coal generators or take them away from manufacturers or 
whomever they choose they may do so under today's law without 
any need for this legislation.
    Mr. Pallone. All right. Thank you very much. Thank you, Mr. 
Chairman.
    Mr. Whitfield. At this time the chair recognizes the 
gentleman from Missouri, Mr. Long, for 5 minutes.
    Mr. Long. Thank you, Mr. Chairman, and Mr. Beck, you state 
in your testimony that the EPA wants the small coal waste 
plants to reduce mercury emissions, 70 percent of just 8 
ounces.
    How does this compare to large coal plants? Turn your mic 
on. Pull it real close there. People listen on the Internet and 
they can't hear unless you get your mic up close.
    Mr. Beck. On the mercury--70 percent on the mercury, did 
you say?
    Mr. Long. Right. In your testimony you say EPA wants small 
coal waste plants to reduce the mercury emissions.
    Mr. Beck. That was my understanding of the rule that they 
were going to put a blanket over it and require all the coal-
fired power plants to reduce mercury 70 percent.
    Mr. Long. So it is the same as the large coal?
     Mr. Beck. Yes.
    Mr. Long. There is no difference in the small coal plants?
    Mr. Beck. I am not sure what the amounts are or the 
concentrations are on the anthracite coal that they have out 
there. But I know about the waste bituminous coal and the 
regular bituminous coal plants.
    Mr. Long. Are you in a position where you could discuss the 
financial impact of this rule on small coal waste plants?
    Mr. Beck. The problem is 70 percent of 8 ounces. The one 
waste coal plant did a stack emission test----
    Mr. Long. Can you pull your mic a little closer for me?
    Mr. Beck [continuing]. On 8 ounces----
    Mr. Long. Can you pull your microphone closer to you?
    Mr. Beck [continuing]. And found 8 ounces per year coming 
out of the stack on an actual emissions test and the larger 
normal coal plants which burned the deep coal or the strip 
mined coal the one was producing 1,600 pounds of mercury here.
    So, 70 percent of 1,600 pounds--that is a lot of emissions 
coming out. But how do you reduce 8 ounces by 70 percent? That 
is probably not detectable.
    Mr. Long. What is the impact of this for the industry as a 
whole, then?
    Mr. Beck. They would have to spend a lot of money to try to 
get it down that low.
    Mr. Long. Or go out of business maybe?
    Mr. Beck. And it would probably put them out of business. 
And my issue with that is if the small waste coal burning 
plants go out of business there are going to be more piles that 
ignite and throw many times more mercury into the atmosphere 
than the waste coal plants ever did.
    Mr. Long. OK. And Mr. Brisini, could you discuss the 
alternative compliance options and the SENSE Act for coal 
refuse facilities burning high sulfur coal?
    Mr. Brisini. The alternative option is to identify a 
performance standard 93 percent sulfur dioxide removal and add 
that as an option to provide for a compliance demonstration.
    That would only be used by the bituminous coal refuse fired 
plants. People keep talking as though we are talking about all 
of the coal refuse plants.
    The SENSE Act really provides relief for bituminous coal 
refuse plants. Because of the fuel makeup, the anthracite, they 
can meet the current alternative SO2 standard. As 
far as the statement that was made that everybody meets HCL, 
that is not in fact true at all.
    In Pennsylvania, there is one coal refuse plant of either 
type, bituminous or anthracite, that meets the HCL. The 
circumstance is that that plant is a low emitter and that one 
plant was used in the development of the MACT floor.
    But that's one plant. That's an outlier. It was the last 
plant built, came online in 2004. There are vast differences 
between coal and coal refuse plants. It's not only the fuel. It 
is the technology used to burn the fuel to make the material.
    Large coal-fired power plants or pulverized coal-fired 
power plants, they can be equipped with selective catalytic 
reduction for nitrogen oxides. They can be equipped with wet 
flue gas scrubbers in a cost effective fashion.
    That is, by the way, how the large coal-fired plants will 
control mercury. They will not be doing it with any mercury-
specific control technology. The mercury will be removed as a 
co-benefit of the sulfur dioxide controlled in the coal-fired 
power plants.
    But as far as another statement that the state gets a first 
crack, that is not the case in CSAPR. It's been a FIP from day 
one, and in fact if you go back and you look at other 
Department of Environmental Protection letters from 
Pennsylvania DEP there was great consternation raised over the 
FIP first because the states were not given the opportunity in 
CSAPR to do anything.
    It was not similar to CARE where a budget was established 
and the states had the opportunity to develop their own 
allocation methodologies, which is what we did in Pennsylvania 
and other states did the same thing.
    Mr. Long. I am a little confused on my time. I have gone 
from 8--the chairman was very generous, gave me 8 minutes and 
20 seconds for a while and it stopped and then a minute and now 
38 seconds. I'm not sure----
    Mr. Whitfield. You've actually been over 5 minutes but 
we'll give you----
    Mr. Long. Well, with that I will yield back. I have been 
trying to watch the clock and fit in my questions but that 
didn't work too well. So I think the regulators have taken a 
hold of our clocks.
    Mr. Brisini. The regulated, not the regulators. The 
regulated.
    Mr. Whitfield. OK. Thank you. At this time I will recognize 
the gentleman from Oklahoma, Mr. Mullin, for 5 minutes.
    Mr. Mullin. Thank you, Mr. Chairman, and thank you to the 
panel for being here.
    Mr. Walke, where are you from?
    Mr. Walke. I am from South Carolina.
    Mr. Mullin. South Carolina. What is your interest in 
Pennsylvania?
    Mr. Walke. My interest is in air pollution and this bill 
concerns coal plants that are----
    Mr. Mullin. Do you believe in states' rights? But do you 
believe in states' rights?
    Mr. Walke. Sure. There is a whole----
    Mr. Mullin. So what you are opposing is going to affect----
    Mr. Walke. South Carolina is going to award it without 
that.
    Mr. Mullin. Yes, but what you are opposing is going to 
affect the people that really live in Pennsylvania and I have a 
big problem with people that are injecting their opinion in a 
community they don't live in.
    You don't understand how important it is, the way of life 
it is, for those that live in Pennsylvania but yet you want to 
inject your opinion in it. That is why we set up states' rights 
to begin with and you said you believe in it.
    You say there's a way that states can go around it and they 
have the final say in it. Well, you and I both know that is 
absolutely not true because what happens is the EPA sets the 
standards and then they hold the entire state hostage for it 
and that is how we are putting an entire industry out of 
business.
    And then you say that there are scrubbers that is 
available. Well, how much do those scrubbers cost? How much do 
those scrubbers cost that you are talking about to install?
    What do they cost an individual or the industry to install 
per scrubber?
    Mr. Walke. Congressman, there are different sizes according 
to the size of the plant.
    Mr. Mullin. Give me an average.
    Mr. Walke. I don't think an average is possible. I don't 
know----
    Mr. Mullin. So you're saying that this technology is 
available but you don't even know what it costs and then again 
you are not even going to pay it because you don't even live in 
the state. But yet you want to put your opinion in there. I 
have a big problem with this.
    Mr. Walke. Congressman, I was invited to testify at this 
committee.
    Mr. Mullin. I understand you were invited.
    Mr. Walke. I've only lived in two states my whole life but 
I am testifying about a field that applies across the country.
    Mr. Mullin. I understand that you were invited. You can 
listen because I'm talking right now. So I understand that you 
were invited and I get that and I appreciate your being here.
    But you start acting like all this technology is available 
and it is just as simple as installing it like it would be 
hooking up a garden hose. But you don't even know what it costs 
and I don't even actually know if the technology is actually 
there.
    And Mr. Brisini, is that right? Does the technology really 
exist that Mr. Walke is talking about?
    Mr. Brisini. Well, this is very, very important. You can 
look at this and say what is--technically if you had all the 
money you wanted and all the money you needed and you had all 
the opportunity for design engineering could you design a 
technology to take out the difference.
    Yes, you probably could but nobody would be in business 
anymore, especially in Pennsylvania where we operate as 
competitive wholesale generators. We are not rate based.
    We are competitive companies no different than any other 
competitive company. We have to recover our costs from the PJM 
wholesale electric market.
    If you were to attempt to build a scrubber, and I do know 
what scrubbers cost because I have put them on coal-fired power 
plants and I have put them on big plants and I know that they 
don't go on little plants because the plants I used to take 
care of in many cases are now retired because they can't afford 
to put it and they are considerably larger than these plants.
    In the case of a large coal-fired facility that I used to 
take care of as the environmental air quality manager it was a 
1,700 megawatt facility. The scrubbers cost $675 million.
    You go to these small plants, and if you look at a dollar 
per ton you were starting with no control essentially of sulfur 
dioxide.
    Now you look at these plants. These plants are actually 
controlled and they are controlled to 93 percent. The scrubber 
gets to 98 percent. So you are looking at this little 
difference of 5 percent.
    So if you look at a dollar per ton basis, all of a sudden 
you stick a $100 million dollar scrubber to get 5 percent more 
when in fact you have allowances going to retired units which 
are only going to sell them in the market so somebody can emit 
them, this is a net wash.
    All of this upwind downwind discussion is not an accurate 
reflection. This is about preserving the budget established by 
EPA. It is about having a pragmatic solution that works.
    It is about making it so everybody can be OK. But somebody 
can't be OK because they want everything the way they want and 
there is a way to get to the right solution.
    Mr. Mullin. Right. And just to sum it up, this isn't as 
easy, Mr. Walke, as just putting a muffler on a car and that is 
how you make it sound. And I don't mean to come across 
confrontational to you but you are here to testify. But yet you 
don't have all your facts.
    I yield back.
    Mr. Whitfield. The gentleman yields back and that concludes 
the questions and concludes today's hearing on these two pieces 
of legislation.
    Once again, I want to thank all of the witnesses for being 
here and for giving us your perspective on both of these pieces 
of legislation.
    We will keep the record open for ten days and we look 
forward to working with all of you as we make an effort to 
bring these bills to the floor.
    And do you have anything else, Jerry? OK. So that concludes 
the hearing. Thank you all once again.
    [Whereupon, at 12:15 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                 Prepared statement of Hon. Fred Upton

    EPA regulations impact nearly every facet of the American 
economy, especially manufacturers and energy producers. When 
unnecessary or duplicative, they can have a devastating impact, 
particularly in small communities where job opportunities are 
limited. That is why Congress needs to make targeted 
corrections when we believe the agency has gone too far. The 
SENSE Act and the BRICK Act are two bills that restore balance 
to EPA rulemaking and merit our support.
    The problem of coal refuse--the piles of unusable coal 
mixed with other materials near abandoned mines--is a very 
serious one in rural Pennsylvania and other coal mining areas. 
Coal refuse is a cause of air, water, and ground contamination 
problems in these communities.
    Fortunately, a solution has emerged. Coal refuse-to-energy 
plants have been developed that can use this waste material to 
generate electricity. About 20 such facilities are currently in 
operation, mostly in Pennsylvania. These power plants have thus 
far removed 214 million tons of coal refuse from the 
environment, while producing energy and jobs.
    Given the proven environmental benefits of these 
facilities, one would hope EPA would support them, but instead 
the agency has issued two rules that threaten to close many of 
them down. Both the Cross State Air Pollution Rule (CSAPR) and 
the Mercury and Air Toxics Standards (MATS) apply to all types 
of coalfired power plants, but are ill-suited to the unique 
features of coal refuse-to-energy operations. Many owners of 
such facilities say that these rules may force them to shut 
their doors.
    Rep. Keith Rothfus has sponsored the SENSE Act that would 
provide relief for these much-needed facilities. This bill 
would make limited changes to the CSAPR and MATS rules in order 
to provide coal refuse-to-energy plants with an alternative 
means of compliance. It's a win for the environment and a win 
for affordable energy and jobs in coal country.
    EPA has also targeted the brickmaking industry with 
stringent new emissions standards, commonly called Brick MACT. 
Meeting these standards is simply unrealistic for most brick 
makers, especially those that are small businesses. America's 
131 brick facilities are major employers in their communities, 
like Forterra Brick in Corunna, Michigan.
    It is not clear that Brick MACT will survive judicial 
scrutiny either--EPA's previous version of the rule in 2003 did 
not--but it may take several years before a final decision is 
handed down by the federal courts.
    The BRICK Act would provide a measure of relief for this 
industry. The bill would delay EPA's compliance deadlines for 
the rule until after judicial review is completed. This will 
provide both additional time and much needed regulatory 
certainty for this sector. I thank my colleague Bill Johnson 
for his work on this draft bill.
    The SENSE Act and BRICK Act are two reasonable measures to 
help ensure that jobs are protected in two important sectors of 
the economy. I urge my colleagues to support this legislation.
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