    [Senate Hearing 115-127]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-127

                    LEGISLATIVE HEARING ON S. 1857, S. 203,
                              S. 839, AND S. 1934

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

                                    HEARING

                                   before the

                           SUBCOMMITTEE ON CLEAN AIR
                               AND NUCLEAR SAFETY

                                     of the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               NOVEMBER 14, 2017

                                   __________

      Printed for the use of the Committee on Environment and Public Works

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Available via the World Wide Web: http://www.fdsys.gov

                              _________

                    U.S. GOVERNMENT PUBLISHING OFFICE

     27-895 PDF             WASHINGTON : 2017
    ____________________________________________________________________
     For sale by the Superintendent of Documents, U.S. Government Publishing Office,
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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                         ONE HUNDRED FIFTEENTH CONGRESS
                                 FIRST SESSION

                        JOHN BARRASSO, Wyoming, Chairman
    JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware
    SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
    JOHN BOOZMAN, Arkansas               BERNARD SANDERS, Vermont
    ROGER WICKER, Mississippi            SHELDON WHITEHOUSE, Rhode Island
    DEB FISCHER, Nebraska                JEFF MERKLEY, Oregon
    JERRY MORAN, Kansas                  KIRSTEN GILLIBRAND, New York
    MIKE ROUNDS, South Dakota            CORY A. BOOKER, New Jersey
    JONI ERNST, Iowa                     EDWARD J. MARKEY, Massachusetts
    DAN SULLIVAN, Alaska                 TAMMY DUCKWORTH, Illinois
    RICHARD SHELBY, Alabama              KAMALA HARRIS, California

                  Richard M. Russell, Majority Staff Director
                   Gabrielle Batkin, Minority Staff Director
                                  ----------

                  Subcommittee on Clean Air and Nuclear Safety

                 SHELLEY MOORE CAPITO, West Virginia, Chairman
    JAMES M. INHOFE, Oklahoma            SHELDON WHITEHOUSE, Rhode Island
    JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
    ROGER WICKER, Mississippi            BERNARD SANDERS, Vermont
    DEB FISCHER, Nebraska                JEFF MERKLEY, Oregon
    JERRY MORAN, Kansas                  KIRSTEN GILLIBRAND, New York
    JONI ERNST, Iowa                     EDWARD J. MARKEY, Massachusetts
    RICHARD SHELBY, Alabama              TAMMY DUCKWORTH, Illinois
    JOHN BARRASSO, Wyoming (ex officio)  THOMAS R. CARPER, Delaware (ex
                                             officio)

                                C O N T E N T S

                                  ----------
                                                                       Page

                               NOVEMBER 14, 2017
                               OPENING STATEMENTS

    Capito, Hon. Shelley Moore, U.S. Senator from the State of West
      Virginia.......................................................     1
    Sullivan, Hon. Dan, U.S. Senator from the State of Alaska,
      prepared statement.............................................     2
    Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
      Island.........................................................     4
    Burr, Hon. Richard, U.S. Senator from the State of North Carolina     5
    Shelby, Hon. Richard, U.S. Senator from the State of Alabama.....     8

                                   WITNESSES

    Henry, Davis, President, Henry Brick Company.....................     8
        Prepared statement...........................................    11
    Kersting, Christopher J., President and CEO, Specialty Equipment
      Market Association.............................................    15
        Prepared statement...........................................    17
        Responses to additional questions from Senator Whitehouse....    23
    Williams, Paul, Vice President, Business Intelligence, United
      States Stove Company...........................................    29
        Prepared statement...........................................    31
    Hammond, Emily, Glen Earl Weston Research Professor of Law,
      George Washington University Law School........................    50
        Prepared statement...........................................    52
    Walke, John, Clean Air Director, Natural Resources Defense
      Council........................................................    61
        Prepared statement...........................................    63

                              ADDITIONAL MATERIAL

    Legislation:
        S. 1857, To establish a compliance deadline of May 15, 2023,
          for Step 2 emissions standards for new residential wood
          heaters, new residential hydronic heaters, and forced-air
          furnaces...................................................   104
        S. 203, To reaffirm that the Environmental Protection Agency
          may not regulate vehicles used solely for competition, and
          for other purposes.........................................   106
        S. 839, To allow for judicial review of any final rule
          addressing national emission standards for hazardous air
          pollutants for brick and structural clay products or for
          clay ceramics manufacturing before requiring compliance
          with such rule.............................................   109
        S. 1934, To prevent catastrophic failure or shutdown of
          remote diesel power engines due to emission control
          devices, and for other purposes............................   112
    Letters:
        To the EPA Office of Policy Regulatory Reform from the Alaska
          Energy Authority, May 15, 2017.............................   114
        To Senators Capito and Whitehouse from the American
          Motorcyclist Association et al., November 13, 2017.........   116
        To Whomever It May Concern from OMNI-Test Laboratories,
          November 14, 2017..........................................   118
        To Senators Barrasso, Capito, Carper, and Whitehouse from the
          Hearth, Patio & Barbecue Association, November 28, 2017....   120
        To Senator Sullivan from the Tanana Chiefs Conference,
          undated....................................................   130

                    LEGISLATIVE HEARING ON S. 1857, S. 203,
                              S. 839, AND S. 1934

                                  ----------

                           TUESDAY, NOVEMBER 14, 2017

                                   U.S. Senate,
             Committee on Environment and Public Works,
                  Subcommittee on Clean Air and Nuclear Safety,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10:03 a.m. in
    room 406, Dirksen Senate Building, Hon. Shelley Moore Capito
    (Chairwoman of the Subcommittee) presiding.
        Present: Senators Capito, Inhofe, Boozman, Wicker, Fischer,
    Ernst, Shelby, Whitehouse, Gillibrand, and Carper.
        Senator Capito. I want to thank everybody for being here
    today.
        This hearing of the Clean Air and Nuclear Safety
    Subcommittee is called to order.
        I will begin by recognizing myself for a brief opening
    statement before turning over the floor to Ranking Member
    Whitehouse for 5 minutes. We will then hear from our first
    panel, which consists of Senator Burr, who just arrived to
    introduce his legislation, the RPM Act.
        Thank you, Senator Burr, for being here.
        Our second panel of expert witnesses will then take their
    seats. Senator Shelby will then be recognized to introduce two
    witnesses from his home State of Alabama before we proceed.
        I will recognize myself for 5 minutes.

            OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
              U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

        Senator Capito. I don't think anyone can argue that the
    volume of Federal regulation has grown over the decades. The
    last decade, in particular, saw an explosion in red tape. The
    Code of Federal Regulations has grown from 71,224 pages in 1975
    to 185,053 pages at the end of last year.
        The Federal Register mirrors this regulatory expansion.
    Last year 95,894 shattered the record of the most pages entered
    in a single year. Of the 10 highest annual Federal Register
    page counts, 7 of these occurred during the last
    Administration.
        The results of all that regulation have been predictable--
    the slowest economic recovery from any recession since World
    War II; an increase in litigation instead of investment; meager
    job creation; wage growth and more businesses dying than being
    opened; and a transfer of power--I would argue the legislative
    authority itself--from Congress to the executive branch that
    would confound, I believe, our framers of the Constitution.
        Politicians, bureaucrats, and the media have been fixated
    on the biggest, most headlining, grabbing regulations of the
    past few years, Obamacare implementation, Dodd-Frank, and the
    EPA's Clean Power Plan, to name a few. While these are massive
    regulatory expansions touching huge sectors of the economy, and
    rightfully deserve public and political scrutiny, there are
    many more regulations being imposed outside the spotlight
    largely unnoticed.
        That is the subject of today's hearing. This will
    demonstrate that they have not gone unnoticed by the
    businesses, families, and communities suffering from the
    impacts of all this red tape. The four bills being considered
    by the Committee today are narrowly targeted to simply and
    easily provide regulatory relief and certainty for industries
    that will unnecessarily suffer outsized cost from EPA rules and
    actions. As we will hear, the companies affected are not huge
    multinationals, but American family businesses across the
    country, their workers, and their customers.
        My bipartisan bill, S. 1857, introduced with Senators
    Shelby, McCaskill, and Manchin, would extend the deadline for 3
    years for the wood heater industry to meet new emissions
    standards. That extension is vital for them to develop,
    engineer, test, manufacture, and distribute to retailers models
    that are compliant with the new standards. It also makes common
    sense when the EPA has not even certified the new test
    procedure for these wood stoves and hydronic heaters. It is
    hard for anyone to study for a test when you don't know what
    will be on it.
        Senator Wicker's S. 839, the BRICK Act, of which I am a co-
    sponsor, will similarly extend the compliance deadline on rules
    relating to emissions from brick manufacturing until that
    litigation issue is complete.
        Senator Burr's S. 203, the RPM Act, which I have also co-
    sponsored, would clarify that vehicles used solely for
    competition are not to be treated like the cars that drive on
    our nation's roads. Congress never intended for cars that have
    been modified from street use to use only on race tracks to be
    regulated. Race cars cannot and should not be held to the same
    standards as passenger vehicles. The EPA tried to circumvent
    the language of the Clean Air Act by creating a regulatory
    regime that would hurt not only the motor sports industry, but
    Americans all over the country who enjoy the hobby of tracking
    modified vehicles.
        Senator Sullivan's S. 1934, the Alaska Remote Generator
    Reliability and Protection Act, will ensure that remote
    communities will have access to reliable power. The diesel
    generators upon which communities rely in remote Alaska cannot
    be required to install emission controls if that would put the
    health and welfare of Alaskans at risk. I have visited
    Oscarville, so I have been to a remote village.
        I would also ask unanimous consent to insert Senator
    Sullivan's statement for the record.
        Senator Whitehouse. Without objection.
        [The prepared statement of Senator Sullivan follows:]
                        Statement of Hon. Dan Sullivan,
                     U.S. Senator from the State of Alaska
        Chairwoman Capito, I submit the following testimony regarding S.
    1934, the Alaska Remote Generator Reliability and Protection Act, which
    I introduced in October with Senator Murkowski. This bill is narrowly
    focused to provide a minor exemption from New Source Performance
    Standards (NSPS) for compression ignition internal combustion engines
    used to power and heat remote Alaska villages. I appreciate the
    Committee adding this bill to the agenda today and for being willing to
    consider an issue that while of limited impact to the lower 48, has
    potentially large ramification for my constituents.
    existing regulations may raise costs and reliability concerns to remote
                                alaska villages
        Rural Alaskans and Alaska natives face environmental, energy, and
    survival challenges that are unique in the United States. Alaska is the
    only State with large amounts of land above the Arctic Circle. Further
    at 1/5 the land mass of the lower 48, but with a population below
    750,000 people, Alaskans in remote villages off the highway system are
    far removed from traditional modes of supply, transportation, and power
    transmission. Because of this, remote Alaska villages rely heavily on
    diesel generators to provide for electricity and heat. In the winter
    these necessities become even more vital as parts of the State can
    plunge to 40+ below. If the power fails and can't be restored quickly,
    it can become not just a question of comfort but health and safety--
    even life and death.
        EPA recognized these unique challenges when it first issued its New
    Source Performance Standards for compression ignition internal
    combustion engines. In that 2006 rule EPA created a process for Alaska
    to work with EPA to form a different implementation plan for rural
    areas not on the Federal Aid Highway System (FAHS) in Alaska. \1\ EPA
    later promulgated special standards for these engines in rural Alaska.
    In setting these special standards EPA recognized that ``these villages
    are scattered over long distances in remote areas and are not connected
    to population centers by road or power grid. The villages are located
    in the most severe arctic environments in the United States and they
    rely on stationary diesel engines and fuel for electricity and heating,
    and these engines need to be in working condition, particularly in the
    winter.'' \2\ EPA also expanded the definition of remote areas in
    Alaska in its newest special rules to include certain small and
    isolated engines on the marine highway system or road system.
    ---------------------------------------------------------------------------
        \1\ Standards of Performance for Stationary Compression Ignition
    Internal Combustion Engines, 80 FR 68808, 68811 (EPA Nov. 6, 2015).
        \2\ Id. at 68812.
    ---------------------------------------------------------------------------
        Under existing regulations, EPA set specific standards for diesel
    generators in ``remote Alaska.'' All new generator sets installed in
    remote areas of Alaska must install diesel particulate filters (DPFs)
    on their new engines. Unfortunately, DPFs decrease the reliability of
    these engines, as well as their fuel efficiency, increasing maintenance
    requirements and nearly doubling the cost of a new engine. Additional
    cost of maintaining a DPF can affect both the economic and public
    health of remote areas. If anything goes wrong with the DPF, and the
    generator shuts down, only a factory trained service technician with
    the proper codes can fix the problem. \3\ In remote Alaska, these
    technicians are at least 1-2 days away from a village and can be
    extremely expensive for small communities without significant access to
    cash economies. \4\ ``It is not uncommon, especially in the fall and
    winter, for villages to be without flights due to weather or extreme
    cold for multiple days or weeks. If a failure in the powerhouse occurs
    during one of these times, the village could suffer significant damage
    to its infrastructure and potentially loss of life.'' \5\ The marine
    industry was able to avoid the restrictions specifically because DPF
    systems are expensive and unreliable. Rural Alaska however did not
    receive this same type of exemption.
    ---------------------------------------------------------------------------
        \3\ Letter from Dave Messier, Rural Energy Coordinator, Tanana
    Chiefs Conference, 1 (2017) (on file with author).
        \4\ Id.
        \5\ Id.
    ---------------------------------------------------------------------------
        One story that I have heard from my constituents that highlights
    these problems recently took place in Dutch Harbor on Amaknak Island in
    the Aleutians. Dutch Harbor is one of the top fishing ports in the
    world, and a key part of Alaska's economy. \6\ Recently Dutch Harbor's
    powerhouse had a malfunction which required a technician from
    Anchorage, 2 hours away, at a cost of approximately $1,000 for the
    flights. \7\ Once in Dutch Harbor the technician was able to repair the
    DPF and return to Anchorage without additional work. \8\ While the
    technician was able to return quickly, if the weather had turned bad--
    as is not uncommon in remote parts of Alaska--it could easily have
    stranded technicians for 2 or more days costing upwards of $130 per
    hour. \9\
    ---------------------------------------------------------------------------
        \6\ Id.
        \7\ Id. at 1-2
        \8\ Id.
        \9\ Id. at 2.
    ---------------------------------------------------------------------------
                                s. 1934 summary
        To address the cost, maintenance, reliability, and flexibility
    concerns with the existing Alaska specific standards, Senator Murkowski
    and I introduced S. 1934, the Alaska Remote Generator Reliability and
    Protection Act. S. 1934 directs the Administrator of EPA to revise,
    within 1 year, 40 CFR 60.4216(c) which sets specific standards for
    stationary compression ignition internal combustion engines (CI ICE)
    like diesel generators in ``remote Alaska.'' The revision to these
    regulations may only require certain emission control devices after the
    Department of Energy and EPA determine that required controls will not
    negatively affect electricity and energy reliability in remote areas of
    Alaska.

        Senator Capito. I look forward to discussing how these
    narrow, straightforward relief bills will benefit American
    workers, consumers, and families because the cost to all of our
    constituents is real.
        I will now recognize Ranking Member Whitehouse for his
    opening statement.

             OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
              U.S. SENATOR FROM THE STATE OF RHODE ISLAND

        Senator Whitehouse. I would like to join Chairman Capito in
    thanking our witnesses for being here today to discuss four
    bills that my Republican colleagues argue will aid specific
    industries stifled by burdensome, costly regulations. Their
    claim is that each bill is a simple fix for a narrowly tailored
    regulation, but the devil is always in the details.
        Industry has asked for a free pass in this Administration,
    and the majority seems happy to oblige. These bills seek to
    delay and defang environmental standards pushing compliance
    dates for regulations or stripping authority from the Clean Air
    Act.
        In May the Subcommittee had a similar hearing on a pair of
    ozone bills that would delay compliance of air quality
    requirements for ozone and other pollutants. Ozone causes bad
    air days in a State like mine located downwind from industry
    facilities to our west. Bad air days keep infants, the elderly,
    and folks with breathing difficulties indoors. The harms to
    them deserve to be counted, too. I have grown weary of this
    Congress and the Trump administration simply following industry
    orders.
        EPA Administrator Scott Pruitt is the poster child for this
    mess. In the 4 months since his appointment, he has moved to
    undo, delay, or otherwise block more than 30 environmental
    rules. There has been no visible enforcement of anything.
    Science denial is rife.
        The regulatory rollback--larger in scope than any over so
    short a time in the agency's near half-century history--is a
    direct boon to the fossil fuel industry. Polluters never want
    to reduce their pollution.
        Fossil fuel producers regularly attack the Clean Air Act.
    They inflate their costs and ignore the other side of the
    ledger like those infants, elderly folks, and folks with
    breathing difficulties who have to stay indoors. These public
    health benefits of reducing pollution deserve to be counted.
        Pruitt just pulled tricks to under-count the public health
    side in his justification for repealing the Clean Power Plan, a
    rule which many utilities and States actually supported. He has
    cooked the books to make the climate and health benefits of the
    plan appear almost negligible compared to the compliance costs.
    This is, again, no change in the harm to individuals. It is
    simple accounting trickery from EPA.
        Clean Air Act regulations have been working for decades,
    and our country has prospered. Between 1970 until 2011
    cumulative emissions of air pollutions dropped by two-thirds
    while U.S. GDP grew by more than 200 percent. The work force
    grew by 88 percent over this period.
        According to a 2011 EPA assessment, the benefits of the
    Clean Air Act will outweigh its cost by a ratio of 30 to 1, $30
    of value in our economy and the lives of regular Americans for
    every single dollar the polluters have to pay in cleanup costs.
        We only seem to care about the latter. Thirty to one is a
    good deal for America, and as a downwind State, it is a
    particularly good deal for Rhode Island. In the Northeast, we
    are showing how we can reduce pollution and grow our economy.
    The Regional Greenhouse Gas Initiative, RGGI, is a cooperative
    effort among the States of Connecticut, Delaware, Maine,
    Maryland, Massachusetts, New Hampshire, New York, Rhode Island,
    Vermont, and shortly I expect again, New Jersey.
        Since 2009 power sector emissions in our region have
    dropped 37 percent. Meanwhile, electricity prices have fallen
    by 3.4 percent, and bills have gone down as efficiency measures
    save on use. RGGI estimates it has helped create 30,000 new
    jobs and added $2.9 billion in regional economic growth. Just
    recently the bipartisan Governors involved in RGGI agreed to
    strengthen the program by an additional 30 percent reduction in
    power sector emissions. RGGI proves Republicans and Democrats
    can work together to fight pollution, protect the climate, and
    power the economy forward.
        I urge my colleagues to reach across the aisle to work with
    us. There is common ground to be found on a variety of
    environmental issues. We shouldn't just deliver an industry
    wish list like the Murray Coal three-page plan we have not been
    allowed to see. Delaying air quality standards has real life
    consequences, and they hit home in Rhode Island.
        I look forward to today's discussion.
        Thank you, Chairman Capito.
        Senator Capito. Thank you, Senator.
        I will now recognize our first panel and panelist, our
    colleague, Senator Burr, from the great State of North Carolina
    to introduce his legislation, S. 203, the RPM Act.
        Welcome.

                OPENING STATEMENT OF HON. RICHARD BURR,
             U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

        Senator Burr. Thank you, Chairman Capito, Ranking Member
    Whitehouse, and any other members of the Subcommittee who might
    be here.
        I want to thank you for allowing me to come and speak in
    favor of a bill I introduced this year, S. 203, the Recognizing
    the Protection of Motorsports Act, the RPM Act. Let me say from
    the beginning that this is a bipartisan, common sense approach
    to something that shouldn't have been a problem.
        Since the first motor vehicle rolled across the assembly
    line, amateur mechanics and drivers have used hard work and
    ingenuity to transform their vehicles into race cars. These
    early pioneers established a framework for today's thriving
    American motor sports industry from the largest race tracks in
    Daytona, Florida; Dover, Delaware; Watkins Glen, New York; to
    the local tracks like Devil's Bowl Speedway in Vermont and the
    Summit Point Motor Sports Park in West Virginia.
        The National Association of Stock Car Auto Racing was
    founded in 1948. It was initially based on the notion that
    racers purchased cars from dealer stock and modified them to
    race. NASCAR has come a long way from its roots in the
    foothills of North Carolina where moonshiners modified their
    vehicles to elude local law enforcement.
        Today the area around Charlotte hosts multi-million dollar
    facilities where professional race teams manufacture and
    fabricate their race cars. Each week these teams travel around
    the United States racing in front of millions of fans. However,
    for thousands of amateur mechanics and drivers all across the
    country, the tradition of modifying a street car in order to
    race at their local track each weekend still lives on.
        A rule proposed in 2015 by the EPA raised doubts as to
    whether amateur racing would continue. The EPA rule would have
    made it illegal to convert an automobile into a race car if the
    engine, exhaust, or any other part of the emissions system was
    altered from its stock configuration. Thankfully, the
    rulemaking was withdrawn as it would have directly attacked the
    very idea American motor sports was built on, and which
    hundreds of thousands of Americans still participate in as
    competitors and spectators every single weekend.
        The bill I introduced is very straightforward. It reaffirms
    that the vehicles used solely for competition--including
    vehicles modified to be used exclusively for racing--will not
    sit in the garage because of an overly broad Washington rule.
    This was never Congress' intent which has, for years, expressly
    exempted these vehicles. The legislation would ensure that the
    original congressional intent is maintained into the future. I
    have been pleased with the bipartisan support this legislation
    has garnered with a total of 38 co-sponsors, including 9 of my
    Democrat colleagues. I hope this broad support highlights the
    importance of the legislation across the country.
        For those who illegally modify their personal vehicles for
    use on our roads, this bill offers no relief. For example, in
    North Carolina, most passenger vehicles are required to pass
    emissions testing every year. In the State of Maryland, it is
    every 2 years.
        Following passage of this legislation, States will still be
    able to establish a testing regime that meets their needs for
    all vehicles that operate on public streets and highways. The
    RPM Act is narrowly tailored to ensure Americans who want to
    purchase a modified vehicle and take it to the race track--and
    only the race track--will continue to be able to do so.
        I believe after careful consideration and examination,
    members of this Committee will come to the same conclusion that
    this is a simple, yet important, piece of legislation that will
    provide certainty to amateur racing enthusiasts in each of our
    States.
        Again, I want to thank the Subcommittee for consideration
    of this legislation.
        [The prepared statement of Senator Burr follows:]

                        Statement of Hon. Richard Burr,
                 U.S. Senator from the State of North Carolina

        Chairman Barrasso, Ranking Member Carper, members of the
    Senate Committee on Environment and Public Works, thank you for
    allowing me to come here today and speak in favor of the bill I
    introduced earlier this year, S. 203, the Recognizing the
    Protection of Motorsports Act of 2017, or RPM Act.
        Since the first motor vehicle rolled across the assembly
    line, amateur mechanics and drivers have used hard work and
    ingenuity to transform their vehicles into race cars. These
    early pioneers established the framework for today's thriving
    American motorsports industry, from the largest race tracks in
    Daytona Beach; Dover, Delaware; and Watkins Glen, New York, to
    local tracks like Devil's Bowl Speedway in Vermont and the
    Summit Point Motorsports Park in West Virginia. The National
    Association for Stock Car Auto Racing was founded in 1948, and
    was initially based on the notion that racers purchase cars
    from dealers' stock and modify them to race.
        NASCAR has come a long way from its roots in the foothills
    of North Carolina, where moonshiners modified their vehicles to
    elude local law enforcement. Today the area around Charlotte
    hosts multi-million dollar facilities where professional race
    teams manufacture and fabricate their race cars, and each week
    these teams travel around the United States racing in front of
    millions of fans; however, for thousands of amateur mechanics
    and drivers all across the country the tradition of modifying a
    street car in order to race at their local track each weekend
    still lives on.
        A rule proposed in 2015 by the Environmental Protection
    Agency raised doubt as to whether amateur racing would
    continue. The EPA rule would have made it illegal to convert an
    automobile into a race car if the engine, exhaust, or any other
    part of the emission system was altered from its stock
    configuration. Thankfully the rulemaking was withdrawn, as it
    would have directly attacked the very idea American motorsports
    was built on, and for which hundreds of thousands of Americans
    still participate in as competitors and spectators every
    weekend.
        The bill I introduced is very straightforward. It reaffirms
    that vehicles used solely for competition--including vehicles
    modified to be used exclusively for racing--will not sit in the
    garage because of an overly broad Washington rule. This was
    never Congress' intent, which has for years expressly exempted
    these vehicles. The legislation would ensure that the original
    congressional intent is maintained in the future.
        I have been pleased by the bipartisan support this
    legislation has garnered, with a total of 38 co-sponsors,
    including 9 of my Democratic colleagues. I hope this broad
    support highlights the importance of the legislation across the
    country.
        For those who illegally modify their personal vehicle for
    use on our roads, this bill provides no relief. For example in
    North Carolina, most passenger vehicles are required to pass
    emissions testing every year; in the State of Maryland it is
    every 2 years. Following the passage of this legislation States
    will still be able to establish a testing regime that meets
    their needs for all vehicles that operate on public streets and
    highways. The RPM Act is narrowly tailored to ensure Americans
    who want to purchase a vehicle, modify it, and take it to the
    race track--and only to the race track--will continue to be
    able to do so.
        I believe after careful consideration and examination the
    members of this Committee will come to the same conclusion that
    this is a simple, yet important piece of legislation that will
    provide certainty to the amateur racing enthusiasts in each of
    our States.
        I again want to thank the Committee for allowing me to
    speak today.

        Senator Capito. Thank you, Senator. I appreciate that.
        You can head off to your business, and I will call the
    second panel. Thank you.
        I would like to thank the second panel for joining us.
        I want to now recognize Senator Shelby to introduce two of
    our witnesses from the great State of Alabama.

               OPENING STATEMENT OF HON. RICHARD SHELBY,
                 U.S. SENATOR FROM THE STATE OF ALABAMA

        Senator Shelby. Thank you, Madam Chair. I would like to
    thank you for calling this hearing. I know I just got here, but
    I welcome the opportunity to introduce two of our witnesses,
    Mr. Davis Henry of Selma, Alabama, and Paul Williams of
    Bridgeport, Alabama.
        Mr. Davis Henry currently serves as President of Henry
    Brick Company, a family owned, small business that has
    manufactured clay bricks in Selma, Alabama, for more than 70
    years. He represents a third generation, and the Henrys operate
    the plant which employs 58 Alabamians.
        Mr. Williams is the Vice President, Business Intelligence
    for the U.S. Stove Company, where he has worked for more than
    20 years. U.S. Stove Company's manufacturing facility is
    located in Bridgeport, Alabama, not very far from Chattanooga,
    Tennessee, where they employ more than 150 people.
        These two privately owned, small businesses represent many
    of the industries and employers in Alabama that are being
    adversely impacted by overly proscriptive and burdensome EPA
    rules and regulations.
        When agencies disregard the interests and needs of small
    manufacturers and businesses, the results are policies that do
    more economic harm than environmental good and places undue
    hardships on both the producers and the consumers.
        I want to thank you for your work, Madam Chair, in working
    to reduce regulatory burdens on small manufacturers and job
    creators. I look forward to hearing from our panelists today on
    how the bills before us will do just that.
        Thank you.
        Senator Capito. Thank you, Senator.
        I will move forward with the rest of the introductions. Mr.
    Christopher J. Kersting is the President and CEO of the
    Specialty Equipment Market Association, representing the
    aftermarket automobile parts and service industry. Mr. John
    Walke is the Director of the Clean Air and Climate Program at
    the Natural Resources Defense Council here in Washington. Ms.
    Emily Hammond is the Glen Earl Weston Research Professor of Law
    at the George Washington University Law School focused on
    energy, environmental and administrative law. Welcome.
        Mr. Henry, I will start with you. You will be recognized
    for 5 minutes. Your full statement will be submitted for the
    record.

                 STATEMENT OF DAVIS HENRY, PRESIDENT,
                          HENRY BRICK COMPANY

        Mr. Henry. Chairman Capito, Ranking Member Whitehouse, and
    distinguished members of the Subcommittee, good morning, and
    thank you for inviting me to testify on this important issue.
        As Senator Shelby said, my name is Davis Henry. I am the
    President of Henry Brick Company located in Selma, Alabama, a
    company that my grandfather founded in 1945. I represent the
    third generation of Henry's to operate this plant. I also
    currently serve as the Vice Chairman of the Brick Industry
    Association. I am here today to speak on behalf of both my
    company and my industry.
        We currently employ 58 people. If we have both plants
    running, that number is about 95. We have not run Plant 2 too
    much since 2008. The economy took a downturn then. As you can
    imagine, the last 9 years has 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 we know
    what is required of us and that the target will not change once
    those resources are committed.
        I am here today because we were directly impacted by a
    previous moving regulatory target. I want to ensure that my
    company and all remaining brick companies are not victimized
    again.
        In 2003 the first maximum achievable control technology,
    MACT, standard was promulgated for our industry. This rule
    applied only to major sources of hazardous air pollutants, HAP,
    and only to the larger kilns in our industry. For our industry,
    with only two pollutants emitted in any large amount, the
    definition of major source that really applies is a facility
    that has the potential to emit 10 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 at a total cost of about $1.5 million.
        In 2007, almost a full year after our industry achieved
    compliance with the 2003 Brick MACT, it was vacated by the
    courts. 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.
        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 new control devices that were
    the result of the 2003 MACT to establish the limits.
    Unfortunately, like many who installed DLAs, our kilns cannot
    meet these new, more stringent limits.
        We recently conducted a stack test at our facilities that
    confirmed our inability to meet the limits for two of three HAP
    categories with numeric limits. We cannot meet the mercury
    limit nor the PM/non-mercury metals limit. To comply with the
    2015 Brick MACT, we believe we would need to rip out the DLAs
    and install a new lime based system called a DIFF. The EPA
    believes this could cost as much as $3.8 million per kiln.
        There is also an alternate solution the EPA has proposed
    that would only cost $1.65 million per kiln, but that is an
    untested control scenario, and no one knows whether it will
    actually work.
        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 altogether by becoming a synthetic miner or synthetic area
    source. To become a synthetic area source, a facility accepts
    federally enforceable limits that ensures that they never emit
    more than the 10 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, EPA assumes that
    you can become a synthetic area source at little or no cost.
        Unfortunately, our most recent tests also demonstrate that
    we cannot become a synthetic area source with our current
    control devices without greatly reducing capacity. EPA's
    determination was based on faulty data. It appears that there
    was some kind of error in the test that made it appear we could
    reach the limit. We are still investigating our data.
        Henry Brick simply cannot afford to try to hit another
    moving target for 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 rip out
    our DLAs and replace them with DIFFs.
        We need the BRICK Act to ensure that we are not required to
    invest again until we know that the standard is and that it is
    not going to change. This is not a hypothetical issue for our
    industry. It is real. It happened to us at Henry Brick. Please
    don't let it happen again.
        I would be happy to answer any questions.
        [The prepared statement of Mr. Henry follows:]

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        Senator Capito. Thank you.
        Mr. Kersting, you are recognized for 5 minutes.

       STATEMENT OF CHRISTOPHER J. KERSTING, PRESIDENT AND CEO,
                 SPECIALTY EQUIPMENT MARKET ASSOCIATION

        Mr. Kersting. Chairwoman Capito, Ranking Member Whitehouse,
    and members of the Subcommittee, I appreciate the opportunity
    to speak today in support of the Recognizing the Protection of
    Motorsports Act, RPM. We applaud Senator Burr for introducing
    S. 203, along with 38 other bipartisan co-sponsors, including
    EPW Chairman Barrasso, Chairwoman Capito, and Subcommittee
    members Inhofe, Boozman, Fischer, Moran, and Ernst.
        My name is Chris Kersting, and I am the President and CEO
    of the Specialty Equipment Market Association. SEMA is a trade
    association that represents more than 6,900 companies that
    manufacture, sell, and install a variety of specialty auto
    parts, including motorsports equipment.
        The RPM Act solves a problem that did not exist before
    2015. It clarifies that it has always been legal to make
    emissions related changes to a street vehicle that has been
    converted into a race car. It also confirms that it is legal to
    produce, market, and install racing equipment.
        In July 2015 the EPA issued a proposed regulation declaring
    that the Clean Air Act prohibits converting a motor vehicle
    into a race car. Manufacturing, selling, and installing racing
    parts for the converted vehicle would also be a violation.
    Although the EPA did not finalize the proposed rule, the agency
    stands by that interpretation. SEMA contends the interpretation
    contradicts over 47 years of previous EPA practice, and it
    renders illegal the majority of current and future race cars
    and motorcycles.
        Congress never intended for the EPA to regulate race cars.
    Under the Act, a regulated motor vehicle is one that operates
    on the roadways. When enacted in 1970 Congress clarified in the
    conference committee report that the term motor vehicle did not
    include vehicles manufactured or modified for racing.
        Then in 1990 Congress provided authority to the EPA to
    regulate non-road vehicles. It specifically excluded vehicles
    used solely for competition from the definition of a non-road
    vehicle.
        Despite this past clear congressional intent, the EPA's
    2015 regulatory language reads, in part, ``Certified motor
    vehicles and their emission control devices must remain in
    their certified configuration even if they are used solely for
    competition; anyone modifying a certified motor vehicle for any
    reason is subject to the tampering and defeat device
    prohibitions.''
        The EPA interpretation is a reversal from a 45 year status
    quo and is the sole issue of the RPM Act. For nearly five
    decades modification of street vehicles for racing has never
    been questioned under the Act.
        The motor sports industry and the racing enthusiasts
    reasonably rely that racing activity is legal. The RPM Act is
    now necessary to restore certainty under the law.
        There are about 1,300 race tracks across the country. Most
    cater to thousands of organized amateur racing events which
    involve converted vehicles. These drivers, the race teams, and
    the spectators all help drive local economies, fill motel rooms
    and restaurants, and they shop at local stores. All these
    activities translate into tens of thousands of jobs and
    billions of dollars in economic activity, including annual
    sales of racing equipment.
        The EPA interpretation puts this direct and related
    economic activity at risk as illegal under the law. In the
    State of California, which has its own very strict emissions
    laws, they provide an express exemption for race cars and
    modification equipment in both statute and regulation.
        A racing vehicle is defined as a competition vehicle not
    used on public highways. This law establishes an approach that
    is consistent with the RPM Act and consistent with nearly five
    decades of interpretation under the Clean Air Act.
        In conclusion, the RPM Act is narrow in scope. It would
    restore nearly 50 years of consistent interpretation under the
    law. The American motor sports tradition, the many small
    businesses, the jobs and tax revenue associated with it are all
    in jeopardy.
        The EPA's position results in these businesses currently
    operating illegally. The RPM Act will make clear Congress
    renders this activity legal.
        Thank you again for the opportunity to speak in support of
    the RPM Act. I would be willing to answer any questions you may
    have. Thank you.
        [The prepared statement of Mr. Kersting follows:]

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        Senator Capito. Thank you.
        Mr. Williams, you are recognized for 5 minutes.

         STATEMENT OF PAUL WILLIAMS, VICE PRESIDENT, BUSINESS
               INTELLIGENCE, UNITED STATES STOVE COMPANY

        Mr. Williams. Chairwoman Capito, Ranking Member Whitehouse,
    and members of the Subcommittee, thank you for holding this
    hearing today on S. 1857.
        My name is Paul Williams, and I am the Vice President of
    the United States Stove Company. We are a privately owned
    business employing 150 people in Alabama and Tennessee.
        We make a full range of wood heating appliances covered by
    these regulations. The company is almost 150 years old and
    would like to be in business for another 150 years, but we are
    worried.
        Today I represent all wood stove and heater manufacturers
    and retailers that make or sell appliances impacted by EPA
    emission standards. I will refer to this regulation as the New
    Source Performance Standard, NSPS.
        I want to be clear that the United States Stove Company and
    the industry support these Federal regulations. Standards
    provide uniform regulations and predictability which lowers
    costs for consumers through manufacturing efficiencies. All we
    are asking in this bill is for a 3 year extension to meet Step
    2 of the NSPS standards.
        Here is the situation. The EPA finalized this rule in 2015,
    and there are two steps. Manufacturers have already met Step 1
    standards, in most cases, by reducing product emissions by 70
    percent or more. Step 2 standards are even more stringent and
    must be met by May 2020. Products not meeting Step 2 cannot be
    made or sold after May 2020.
        For some products, we had to redesign them from the ground
    up to meet Step 1. It takes a large capital investment ranging
    from $250,000 to $500,000 per product and an additional 9 to 15
    months to bring a single product from concept to market.
    Meeting the Step 1 deadline had consumed a great deal of our
    time and resources. Now we must start this process all over to
    meet the 2020 standards. Since wood burning products are
    seasonal, there is a specific window of time for selling them
    that will make or break a company.
        Retailers will make decisions in October 2018, less than a
    year from now, on products they will sell in the 2019-2020
    heating season. That means we must invent the technology, test
    it for durability and safety, send it to an EPA approved lab
    for testing, and then have it certified by the EPA, all by the
    early fall of 2018 to have product in stores by 2020.
        Each of these steps takes several months and has
    significant cost. Even if we do our part, we are concerned
    about the EPA's capacity to certify products in time.
        Let us talk about the real life impacts. United States
    Stove offers 46 products. If the current timeline stands, we
    will be lucky to have 17 products ready for sale in May 2020.
    Two-thirds of our product line will not be ready. Since
    retailers don't want to get stuck with Step 1 products they are
    not allowed to sell, the closer we get to 2020, they will cut
    purchases to keep inventory low.
        Fewer sales means less production, fewer manufacturing
    jobs, and less capital to develop Step 2 products. We have
    already seen this in Step 1. With fewer products at higher
    prices, retailers will lose sales.
        For one hardware distributor in Prichard, West Virginia,
    whom I have worked with for more than two decades, Step 1
    changed and dramatically affected his forced air furnace sales.
    Product prices doubled from $1,000 to $2,000. In 2015 he sold
    42 warm air furnaces. In 2016, after the price doubled, his
    number dropped to 11, and this year it is down to 8. This will
    only get worse as the number of products declines and prices
    continue to rise. Retailer income and jobs will be cut.
        Rural consumers in States like Iowa, Oklahoma, and Illinois
    who rely on our products will be hard hit. First, consumer
    choices will be cut. Second, prices will rise, and finally,
    consumers will not get cleaner air. With limited products and
    higher prices, consumers will hold on to their older, dirtier
    products longer, many of which have uncontrolled emissions.
        In a rush to improve air quality, we are creating incentive
    to hold on to older products longer. This will actually slow
    air quality improvements.
        Three years does not sound like much, but it will give us
    time to accumulate the capital and do the work to try to
    properly design and test wood burning products that are safe
    and reliable while meeting the required emission limits. We may
    be able to get the prices down to where more families can
    afford them.
        Keep in mind, people and families trust our products to
    have a live fire in their home. We take that seriously. All we
    are asking for is time so that we can accomplish the task at
    hand.
        Thank you for your time.
        [The prepared statement of Mr. Williams follows:]

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        Senator Capito. Thank you.
        Ms. Hammond.

    STATEMENT OF EMILY HAMMOND, GLEN EARL WESTON RESEARCH PROFESSOR
            OF LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

        Ms. Hammond. Chairwoman Capito, Ranking Member Whitehouse,
    and distinguished members of the Subcommittee, thank you for
    the opportunity to testify today.
        I will begin by discussing the Clean Air Act and the
    economic benefits clean air provides. Next, I will put the
    bills you are considering today into context by sounding an
    alarm. The very air we breathe and the climate we depend are
    under assault.
        In the executive branch, the Environmental Protection
    Agency is abdicating its responsibilities under the Act.
    Several features of the bills under consideration today would
    further undermine our clean air protections.
        The Clean Air Act is foundational to protecting human
    health and the environment and ensuring a thriving economy. As
    a result of its protections, between 1970 and 2011 air
    pollution dropped 68 percent while the gross domestic product
    increased 212 percent. Private sector jobs increased by 88
    percent during that same time period.
        Regulations promulgated under the Clean Air Act saved over
    164,000 lives in 2010 alone and are projected to save 237,000
    lives in 2020. By contrast, S. 1857 would roll back protections
    and impose on our society 300 to 800 premature deaths per year.
        Of course when people are sick, they are not working. When
    children are sick, they are not attending school. Clean Air Act
    rules save millions of days of lost work and missed school each
    year.
        Even this brief snapshot shows the economic benefits of
    clean air protections. However, the bills under consideration
    today roll back those protections, which were developed after
    rigorous expert analysis, public and industry input, and cost
    justification, all in the name of catering to special interests
    at the expense of our most vulnerable populations.
        These bills must be considered in further context. The
    Trump administration is failing to carry out Congress' mandate
    to ensure clean air. For example, it is considering revoking
    protections from air toxics, just as another of the bills
    before you today would do, and it has illegally attempted to
    delay the compliance deadlines for environmental protections
    already in effect.
        Alarming as these efforts are, even worse is the
    Administration's utter failure to exercise leadership on
    climate change. Under the Clean Air Act, EPA must regulate air
    pollutants that it finds endanger public health and welfare.
        The term air pollutants includes greenhouse gases. EPA has
    made a detailed, science backed finding that greenhouse gases
    do endanger public health and welfare.
        Given its mandate to regulate in the face of such a
    finding, EPA has undertaken several efforts to reduce the
    United States' contribution to the global problem. These
    efforts used the social cost of carbon in their cost-benefit
    analyses which was developed by an interagency working group,
    subjected to peer review, and upheld in Federal court.
        Notwithstanding the scientific consensus and the
    unthinkable cost of climate change, the Trump administration
    has taken the destructive, absurd approach of pretending that
    it does not exist. This utter abdication of responsibility
    demands this institution's oversight.
        A step in the right direction and within the Subcommittee's
    jurisdiction would be to call EPA Administrator Scott Pruitt to
    task for falling down on the job. Notably, Administrator Pruitt
    has not attempted to revoke the endangerment finding. Doing so
    would be arbitrary and capricious given the overwhelming
    scientific record.
        Yet despite the Clean Air Act's clear direction to regulate
    such emissions, EPA is now attempting to do exactly the
    opposite and with a watered down, outcome driven concept of the
    cost of carbon. Several of the bills before you today would add
    to these harms.
        For example, S. 1857 would increase black carbon and
    greenhouse gas emissions as well as premature deaths due to
    particulate matter exposure. S. 839 would increase emissions of
    hazardous air pollutants like mercury and dioxins.
        Years of experience with the Clean Air Act and EPA's
    implementing regulations demonstrates that clean air is an
    economic good, but clean air protections and our global climate
    are at risk. I urge you to consider this bigger picture as you
    take up the bills before you today. We cannot afford
    complacency.
        Thank you again for the opportunity to testify, and I look
    forward to your questions.
        [The prepared statement of Ms. Hammond follows:]

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        Senator Capito. Thank you.
        Mr. Walke.

    STATEMENT OF JOHN WALKE, CLEAN AIR DIRECTOR, NATURAL RESOURCES
                            DEFENSE COUNCIL

        Mr. Walke. Thank you, Chairwoman Capito, Ranking Member
    Whitehouse, and distinguished members.
        My name is John Walke. I am Clean Air Director and a senior
    attorney for the Natural Resources Defense Council. I am
    testifying over concerns that these four bills will increase
    harmful air pollution. My statement will focus on two of the
    more harmful bills before you, S. 203, the RPM Act; and S. 836,
    a bill to delay protections from hazardous air pollution.
        The most troubling bill before you is one that should not
    be particularly controversial. The RPM Act appears to be a well
    intentioned effort to clarify that vehicles used solely for
    organized motorized racing events do not have to meet pollution
    control requirements applied to on-road vehicles.
        Unfortunately, the current language of the bill opens a
    hugely damaging loophole in the Clean Air Act. I believe the
    resulting increases in air pollution would dwarf the harmful
    air pollution and health impacts of the recent Volkswagen
    cheating scandal.
        The current bill makes it effectively impossible for the
    Federal Government to stop or enforce after the fact the sale
    of vehicle pollution control defeat devices as long as a
    company claims that they intend the device to be used for
    racing. Companies may simply claim under the bill that on-road,
    non-competition use of defeat devices was not their purpose
    when selling the devices, even if they knew, even if they
    should have known, or even if they acted in willful disregard
    of whether those defeat devices were being used on roads and
    highways.
        We don't grant toy manufacturers amnesty from liability if
    they sell toys that are choking hazards for toddlers that they
    should have known the toys would be used and swallowed by
    toddlers or if they acted in willful disregard of that
    certainty. The Clean Air Act should not grant amnesty to
    manufacturers that sell pollution control devices to vehicles
    registered for roads and highways that the manufacturers should
    have known would be used for ordinary on-road driving or if
    they act in willful disregard of that certainty.
        The bill's purpose language is the problem, but I believe
    it is one that can be fixed. Illegal pollution control defeat
    devices are a significant air pollution and health concern in
    this country.
        In just one Justice Department settlement, illegal defeat
    devices allowed an additional 71,000 tons of smog forming air
    pollution. That is equal to one and a half times all motor
    vehicle smog emissions in the State of West Virginia for a full
    year, including from every car, truck, bus, motorcycle,
    tractor, bulldozer, and all other construction and recreational
    vehicles.
        The bill, however, reflects welcome agreements among us
    here today. S. 203 supporters do not want harmful emissions due
    to defeat devices on vehicles driven on roads and highways. S.
    203 critics do not want racing cars used solely for competition
    to be covered by the Clean Air Act. There is a legislative
    drafting fix that can meet the reasonable goals of both groups.
        I ask you to fix the bill. In the meantime, I ask you not
    to pass the bill as written.
        Turning to the hazardous air pollution delay bill, S. 839,
    Joan Hardy and her husband live on a farm outside Elgin, Texas,
    where they raise chickens and turkeys and grow vegetables.
    Their home and farm are surrounded by three brick plants
    covered by EPA's rule. S. 839 would delay that rule
    indefinitely.
        The Hardys' soil, drinking water, vegetable garden, and
    animals are exposed to hazardous pollutants from these brick
    plants, including mercury, heavy metals, dioxins, furans, and
    acid gases. The Hardys are concerned about increased health
    problems for them and their grandchildren who play outside and
    help them tend the vegetables and chickens.
        S. 839 represents an effort to indefinitely delay
    regulation of hazardous air pollution from these facilities
    after these standards have already been delayed 17 years past
    the time that Congress promised the Hardys and all Americans
    that dangerous toxins would be regulated.
        S. 839 seeks even more delay after the industry trade
    association has worked not once but twice to avoid these
    standards. The first time resulted in a Federal court striking
    them down. Let me emphasize that 106 out of 147 kilns have no
    air pollution controls due to this earlier unlawful standard
    that the brick industry supported.
        Finally, let me give brief remarks on the wood stove
    compliance delay bill, S. 1857. There are already significant
    numbers of stoves complying with the Step 2 standards and the
    2020 compliance date; 73 percent of wood pellet wood stoves and
    41 percent of central heaters, for example.
        Those companies are complying, and we should not delay the
    bill for those that are not. Thank you.
        [The prepared statement of Mr. Walke follows:]

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        Senator Capito. Thank you, Mr. Walke.
        I will begin questioning. I appreciate the testimony of you
    all.
        Mr. Williams, I wanted to talk with you about S. 1857. I am
    interested in the comment that Mr. Walke just made that 73
    percent of the wood pellet stoves are already in compliance
    with Step 2.
        I understand from your testimony there has not been
    developed by EPA a sufficient testing compliance standard or
    testing regime. Can you clarify that difference?
        Mr. Williams. I think some of the confusion is that when
    you look at the October listing of the EPA certified
    appliances, there are over 500 appliances that currently meet
    Step 1. Of that, roughly less than 10 percent actually
    qualifies for the Step 2 emission standards.
        Senator Capito. Of the Step 1, only 10 percent qualify for
    the Step 2?
        Mr. Williams. Yes, I think the latest number was something
    like 20 and 26 or something that actually qualify. They have
    not all gone through the test yet.
        The pellet stove test standard, we think will be a low
    hanging fruit and qualify. They qualified under the Step 1
    standard, but Step 2 will require that they all be re-tested.
    That test will require significant cost of another $5,000 per.
        On the wood stove front, while there is an approved
    consensus based test method for everything, it is a crib based
    method. One of the avenues people in the EPA want to explore
    and really want to go to is a cord wood, real world test
    method, how people actually burn their cord wood, their real
    wood stoves. That test method has not been approved yet. That
    is something still in the works.
        Senator Capito. It would be hard to be compliant if you
    don't have a test to know whether you are compliant.
        Mr. Williams. That is a challenge that we have. As I
    stated, we have been forced by the retailers to whom we sell
    that they will not start stocking products as early as next
    year if they are not 2020. They do not want to be burdened with
    product they cannot sell in 2020. Any leftover inventory, they
    will not take.
        Senator Capito. Let me clarify, too, that this bill simply
    asks for a 3 year extension. You are not asking to not comply
    with Step 2?
        Mr. Williams. That is correct. We are small businesses in
    rural communities. We welcome the Clean Air Act. We helped
    develop the data that crafted the NSPS. All we are asking for
    is a little bit of time so that we don't jeopardize the
    manufacturers, the employees, the retailers, and the end
    consumer.
        Senator Capito. It seems to me as well that if you do not
    have the correct protocol in place, you could run the risk from
    the consumer standpoint of running their old stoves, keeping
    something that may have gone through its shelf life, you cannot
    afford a new one and maybe have worse environmental
    circumstances than if you got it right the first time and had
    the Step 2 compliance correct. Am I assuming that correctly?
        Mr. Williams. Yes. I think we are already seeing that from
    the example in Prichard, West Virginia.
        Senator Capito. Right.
        Mr. Williams. With 742 furnaces. Now if people do not have
    an affordable option, they are going to hold onto their older,
    dirtier stoves.
        Senator Capito. Mr. Kersting, on S. 203, West Virginia
    University was very, very instrumental in detecting the
    emissions defeat devices. We are very proud of that in our
    State. I think we are comparing two major issues here with what
    is actually going on in a narrow slice of life in terms of
    racing cars.
        Could you make a distinction, if you can, on cheating on
    emissions on a broad scale, like we saw, and what your sports
    enthusiasts are really doing?
        Mr. Kersting. The VW instance is a case where vehicle
    manufacturers are required to certify vehicles before they go
    out on the road. Those vehicles then have systems in them that
    will help maintain that vehicle and certify compliance.
        VW, like many manufacturers, put millions of vehicles on
    the road. VW had an intentional program to hide a defeat device
    in the system for vehicles being sold new where no one would
    see or know that defeat device was there.
        In the case of the racing industry converting a vehicle,
    those products are marketed and are known. In the case of
    products that end up on the street as illegal tampering, again,
    those products are marketed. EPA has access to see those
    products, and that is why enforcement action does take place
    under the Act in the cases of street tampering.
        The situation here is that EPA has proposed a ban against
    all activity that would convert a certified vehicle for any
    purpose, including racing. That makes enforcement for EPA, with
    regard to street tampering, a pretty simple matter. It throws
    the baby out with the bath water.
        Senator Capito. Let me ask a quick question. You mentioned
    the 1,300 race tracks. I know this is kind of a tough question.
    How many vehicles would there be?
        Mr. Kersting. I actually don't have a specific number of
    vehicles. We could round that up.
        Senator Capito. I would be interested in seeing that.
        Mr. Kersting. There are thousands and thousands of race
    vehicles out there, and more every day.
        Senator Capito. Thank you.
        Mr. Whitehouse.
        Senator Whitehouse. As long as we are on the subject of the
    motor sports bill, let me ask unanimous consent to enter in the
    record technical assistance received from the Trump
    administration EPA making suggestions to improve this bill so
    that it is clear that it does, in fact, deal with race
    vehicles.
        Senator Capito. Without objection.
        [The referenced information follows:]

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        Senator Whitehouse. The testimony from Senator Burr was
    intended to focus on vehicles; to quote him, ``used exclusively
    for racing and used only on the race track.'' If that is true,
    then I think we have language from Trump's own EPA that could
    resolve that issue. Then perhaps we can move forward.
        If this is designed to create a back door for street
    registered vehicles to violate the Clean Air Act, then we are
    going to have a problem. I think that as long as we are
    focusing only on those vehicles that are track vehicles, then
    we can find a solution.
        More generally, I observe yet again that in this hearing,
    it is customarily only one side of the ledger that gets
    attention. Whenever pollution is being cleaned up, there is
    almost inevitably a cost to the polluters to clean up their
    pollution, but there is also often a benefit to the public from
    not having to breathe in the polluted air.
        Over and over again, instead of this Committee looking at
    both sides of the ledger, we hear only about one side of the
    ledger. In fact, I think we could provide a wonderful market
    for one-eyed accountants who can only see one side of the
    ledger here in this Committee.
        Let me ask, with respect to the wood heaters, if Ms.
    Hammond or Mr. Walke have any idea what has been established as
    the cost-benefit ratio for those regulations.
        Mr. Walke. Senator, I do not have that at my disposal. I
    can provide it to you after the fact. The agency has found that
    standards such as these save lives and avoid asthma attacks.
    The agency responsibly assigns a high value to those and has
    consistently found those benefits outweigh the compliance
    costs.
        Senator Whitehouse. For what it is worth, I have
    information that the EPA has estimated the benefits of this
    requirement for new residential wood heaters at $3.4 billion to
    $7.6 billion annually. That is billion with a B, whereas the
    cost of compliance was estimated at $46 million annually, $46
    million with an M. The net benefit is $74 to $165 in benefits
    for every $1 spent to comply.
        In most places, when you spend a dollar and get $74 to $165
    in benefits, that is considered a pretty good deal. However, it
    does require you looking at both sides of the ledger and to
    have public health benefits actually count for something, which
    over and over again, this Committee seems unable to bring
    itself to do.
        One of the things I want to question about the Brick Kiln
    Act is that it would indefinitely postpone this new rule, as I
    understand it, while pending litigation continues. I would ask
    Ms. Hammond or Mr. Walke what this means in terms of the
    industry's ability to manipulate the deadline by simply keeping
    litigation alive for the sake of pushing out the end point of
    the rule.
        Mr. Walke. Senator Whitehouse, let me give two answers to
    that. First of all, the bill is written in such a way that not
    just the pending litigation over the rules from 2015 but future
    litigation over future rules would also continue to delay those
    standards protecting Americans.
        Senator Whitehouse. The industry could truly litigate this
    into the indefinite future, for time immemorial. Our great
    grandchildren could still have no rule because the litigation
    never stopped?
        Mr. Walke. If the rules keep getting relitigated, it is
    just like that.
        The other thing I should note is that just last week, the
    Trump administration agreed to put the industry lawsuits on
    ice, not to dismiss them, but to ensure they would continue,
    therefore fueling this bill's delay even more. Federal judges
    were quite angry at that move and indicated they may just go
    ahead and resolve the lawsuits in the next 2 to 3 months.
        We could have the end of the litigation and therefore, the
    end of any uncertainty period, and Americans could be given the
    protections promised by the Clean Air Act.
        Senator Whitehouse. Get used to it because, in my view,
    this EPA is going to regularly work with industry to create
    artificial delay and defeat the courts because, in effect, the
    industry is on both sides of the litigation when it is industry
    versus Trump EPA.
        Senator Capito. Senator Wicker.
        Senator Wicker. Thank you.
        Thank you, Mr. Henry, for your testimony. In your written
    testimony, you mentioned a constituent of mine, Mr. Puckett.
    You mentioned that basically he had to sell a generations-old
    business because he just couldn't make the compliance costs.
    Would you explain that to the members of the Subcommittee?
        Mr. Henry. Certainly. The brick industry news travels
    pretty fast. A few weeks ago, it came out that Columbus Brick
    had decided to sell to General Shale, a large, multi-national
    conglomerate.
        Al and I spoke about it. Al said one of the mitigating
    factors was continually increasing costs to comply with new
    regulations. He said, with his age and where his family
    business was, they could not commit the $4 million to $6
    million he felt it was going to cost him to comply in the
    future with not only this rule but other rules being considered
    for our industry.
        He felt his only choice--based on that and some other
    factors--was to sell.
        Senator Wicker. When we weigh the pluses and minuses of any
    of these things, we need to weigh the cost of the loss of jobs
    against the benefit. I am sure everyone would agree with that
    also.
        You are also a small business, Mr. Henry. You employ 58
    people. You would like to get back to 95 people, but that would
    require bringing Plant 2 back online. You are just not willing
    to do that with the compliance cost, is that correct?
        Mr. Henry. Well, that is part of it. A lot of it is economy
    driven, also. The building sector has been through a horrible 9
    to 10 years. It has been no fun. Certainly, one of the
    considerations in the soft market is things you would possibly
    have to do to bring that in line.
        One of the frustrating things for us as a company, I think,
    is we currently, and have been since 2005, have been capturing
    95 percent of our HAPs. We capture 95 percent of our
    pollutants. This new rule is dealing with 3 to 4 percent.
        To spend that kind of money on a 3 to 4 percent more
    capture rate and not know if the final rule is going to stay as
    it is, it is kind of scary.
        Senator Wicker. Let's make sure we understand. There was a
    rule that went into place in 2003, correct?
        Mr. Henry. Yes.
        Senator Wicker. You got about the business of complying
    with that rule?
        Mr. Henry. Yes.
        Senator Wicker. Many of your colleagues around the industry
    did so. In the meantime, there a lawsuit which took until 2007
    to be resolved, and it turns out the court ruled that the EPA
    was wrong and the rule could not go into effect. Am I correct
    so far?
        Mr. Henry. That is correct.
        Senator Wicker. Now, in 2015, that you have 95 percent of
    your emissions controlled, EPA comes up with another regulation
    that says you have to do better, and there is a lawsuit about
    that?
        Mr. Henry. Yes.
        Senator Wicker. That is the moving target you are talking
    about?
        Mr. Henry. Exactly.
        Senator Wicker. I see. I hope there is some way we can do
    the balancing act that Mr. Whitehouse talked about. We always
    have to balance the cost versus the benefit. I am sorry my
    colleague has missed the acknowledgment on both sides of the
    dais that we need to do that.
        Electricity can kill you. There is no question about it,
    but we take risks in our society. Without electricity, our
    economy would grind to a halt, so we establish a correct
    balance of this terrible force called electricity that can kill
    you and the benefit to society.
        Reducing the speed limit to 30 miles an hour nationwide
    would save lives, no question about it, but we have taken the
    position, as a society, that would just be too harmful to the
    economy, and so we are willing to take that risk and get our
    speed limit up to 70 miles an hour on interstates and whatever
    the States decide to do on State regulated roads. That is a
    balancing act.
        That is all we are asking EPA to do. I am sure that is all
    the plaintiffs are doing in this lawsuit. Give us something
    that will allow this 40 percent extra number of employees you
    would like to put back to work to have a living.
        I hope we can work on this legislation and achieve that
    sort of sensible balance.
        Thank you, Madam Chair.
        Senator Capito. Thank you.
        Senator Gillibrand.
        Senator Gillibrand. Thank you, Madam Chairwoman.
        For Ms. Hammond, while each of the bills we are considering
    today addresses a niche industry concern with clean air
    regulations that seem minor and relatively noncontroversial, if
    we carved out exemptions for every industry that claimed
    compliance with clean air regulations was too burdensome, what
    would that do to the Clean Air Act?
        Ms. Hammond. It would certainly undermine everything this
    institution envisioned when it passed the Clean Air Act which
    was not just a sector by sector approach at getting us to a
    basic level of clean air, but improving our air over time. We
    should expect those standards to increase over time as we get
    better at what we do.
        Senator Gillibrand. What impact would these bills have on
    the air quality in States like New York?
        Ms. Hammond. In States like New York, for example, if we
    look at the residential wood heaters, we would see increases in
    particulate emissions and increases in premature deaths. As
    Senator Whitehouse noted, the cost-benefit analysis here put
    the benefits at about 100 to 1 over cost.
        In any State where we have kiln manufacturing and wood
    heaters that are emitting that dangerous particulate matter, we
    would see significant costs.
        Senator Gillibrand. Mr. Walke, if S. 203 were to be
    enacted, are there any assurances that EPA would be able to
    prevent cars equipped with emissions defeat devices for racing
    purposes from driving on the roads and highways?
        Mr. Walke. No, and you put your finger on the bill. The
    problem with the bill and the purpose standard, which is a
    significant and extreme retreat from the standard the Justice
    Department has always employed, which is to be able to
    prosecute companies that were selling products they should have
    known would be used on the roadways.
        No one is concerned or troubled by exclusive use for
    racing. We are concerned about a significant departure from the
    standard the Government has successfully used to prosecute
    companies that should have known their products were being
    misused. That is where the bill creates a problem that does not
    exist today.
        The problem is not with racing cars. No one is here arguing
    that people shouldn't be able to use cars for racing with these
    types of devices.
        Senator Gillibrand. Is there any way to tell that a vehicle
    is equipped with a defeat device once it has been installed?
        Mr. Walke. There would be if we had the Government walking
    into garages and looking at individual drivers. I do not think
    anyone wants that. That is why the Government has never brought
    enforcement cases against individual drivers.
        Instead, once these illegal defeat devices are sold and
    installed on cars, we cannot, we do not, and I submit this
    Senate probably doesn't even want EPA going out there trying to
    track down individual drivers to prosecute them for using these
    defeat devices.
        You have to target the behavior before they are sold or
    when they are sold by the manufacturers, which is why
    manufacturers should have known their products would be used by
    individual drivers. That is where the liability should attach.
        Senator Gillibrand. Are there any changes that can be made
    to S. 203 that would give you more confidence that the
    exemption in this bill could not be exploited by those who
    would install defeat devices on vehicles driven on roads and
    highways?
        Mr. Walke. I would strongly recommend two changes to the
    current bill that I think would meet everyone's needs and
    goals.
        The first is not to allow these defeat devices to be sold
    for registered vehicles, vehicles registered on roads and
    highways. The second point I think is even more important. That
    is to eliminate this purpose standard, this purpose language in
    the bill, because that is the language that allows willful
    disregard of sales of defeat devices for registered vehicles.
    Knowing sales and constructive knowledge is the language that
    the bigger problem.
        Again, I think those two fixes would meet everyone's
    objectives.
        Senator Gillibrand. Thank you very much.
        Thank you, Madam Chairwoman.
        Senator Capito. Thank you.
        I would like to turn to Senator Shelby.
        Senator Shelby. Thank you.
        Mr. Henry, thank you for appearing here. I have been to
    your business many, many times and know your family.
        You have spoken to it and been asked a lot of questions.
    What will a little time do for you because you need certainty.
    I know this. You have come a long way in dealing with air
    pollution in the manufacture of bricks, right, all over the
    country?
        Mr. Henry. Yes.
        Senator Shelby. What would a little time do for you?
        Mr. Henry. This is 2017, October, November now. We have to
    be in compliance by December 2018, a little over a year from
    now. There are a lot of control devices that supposedly work to
    control some of these emissions that are not proven
    technologies yet.
        As I stated earlier, we currently capture 95 percent. To
    capture the other 3 to 4 percent, we just want to make sure
    that whatever is proposed works and that the rule to capture
    the last little bit does not change. That is all the time gives
    us.
        Senator Shelby. It is also a big expenditure for your
    company, is it not?
        Mr. Henry. If we went the route of complying with the new
    MACT, it could mean our spending $8 million to comply. To
    become a synthetic source, as we are right now, would mean we
    would have to reduce our production capacity.
        Senator Shelby. What do you mean by a synthetic source?
        Mr. Henry. The EPA is saying if you can stay under the 10
    ton limit, you become a synthetic source, you go off the radar,
    and you no longer have to comply with the MACT. We can do that
    with the control devices we have if we reduce our capacity of
    production.
        The unfortunate thing there is we all know in production,
    the last bit is where you ``make your profits.'' As you reduce
    your capacity, you reduce your ability to make money.
        Senator Shelby. Mr. Williams, I know you have been asked
    these questions. You have over 100 and some employees there in
    Alabama and Tennessee. People have been promoting and saying,
    my gosh, we need to burn pellets, we need the self-sustaining
    wood and all this. Would some of this put you out of business,
    basically?
        Mr. Williams. We have been in business for 150 years.
        Senator Shelby. I know.
        Mr. Williams. We are very proud of that fact. We are in our
    fourth generation.
        Senator Shelby. You should be.
        Mr. Williams. I see the fifth generation running through
    the halls occasionally, so we are very excited about that.
        There are brand names a lot of you may have grown up with
    like Ashley, King, and Wonderwood, and Vogelzang. We have made
    stoves that emitted black, billowing smoke that you would know
    when your neighbor was burning.
        Today, we are very proud of the fact that you cannot tell
    when one of our stoves is burning. There are no visible
    emissions. Step 1 has made products like warm air furnaces,
    that were unregulated before, 70 percent more efficient.
        All we are asking for is a little bit of time so that these
    70 percent more efficient stoves can remain in the marketplace.
    I am afraid if we do not get this extension, it is going to
    jeopardize our rural communities and our jobs.
        We have already started to see the same thing in Prichard,
    West Virginia, a reduction in sales. That is going to affect
    retailers, it is going to affect employees, and finally affects
    the end user.
        Senator Shelby. Ms. Hammond, do you know, of your own
    knowledge, whether or not EPA did a cost-benefit analysis
    before they came with this rule that is causing trouble for a
    lot of people?
        Ms. Hammond. The kiln, the MACT rule?
        Senator Shelby. A cost-benefit analysis?
        Ms. Hammond. Yes, EPA is required to do a cost-benefit
    analysis.
        Senator Shelby. Have you seen that, and could you furnish a
    copy of that for the record?
        Ms. Hammond. I could certainly furnish a copy.
        Senator Shelby. Mr. Henry, don't you think a cost-benefit
    analysis is important before any regulation or law goes into
    effect that would affect the economy, jobs, and health,
    everything?
        Mr. Henry. Oh, certainly but I think that some of the
    things we look at that they are proposing from a cost
    standpoint are not realistic. I think some of the costs are
    undervalued in what is shown from the EPA. To be honest with
    you, that is the scary thing. They have shown the cost at the
    floor with unproven technologies, and you don't know where the
    cost could potentially go.
        Senator Shelby. Bricks have been around a long time. I hope
    they will be here a long time because they are extensively used
    everywhere. To put the brick folks out of business, I don't
    think, in the long run, would be smart.
        We all want good air, a good environment, and a balance
    there. You have never advocated not good environment, have you?
        Mr. Henry. No, Senator. I think we all want a good
    environment. We all want a healthy place for our children and
    for me some day, grandchildren, to live. There has to be a
    cost-benefit to it. I am not sure we know that full answer
    right now.
        Senator Shelby. Thank you.
        Thank you, Madam Chair.
        Senator Capito. Thank you.
        Senator Inhofe.
        Senator Inhofe. Thank you, Madam Chairman.
        First of all, I support all four of the bills. In fact, I
    am a co-sponsor of all four of the bills, including yours,
    Madam Chairman.
        Mr. Kersting, you may have talked about this before, but we
    are competing with the Senate Armed Services Committee right
    now. I am concerned about this because we are really a NASCAR
    State.
        Love's Travel Stops is the largest family owned truck stop
    in America. I remember when they first started. They are in
    Oklahoma. In fact, they were in my office this last week. They
    are the primary sponsor of the NASCAR No. 34 car driven by
    Landon Castle.
        We know the language the EPA has considered, and it makes
    those involved in the racing industry nervous. Opponents of the
    RPM bill and the Obama EPA claimed they were going to go after
    individuals or NASCAR, and there is nothing to worry about. We
    just heard Mr. Walke say essentially the same thing. The EPA's
    language makes it possible for them to do so, don't you think?
        Mr. Kersting. The current EPA interpretation of the law
    renders any conversion activity illegal, whether you are a
    business involved in converting that certified vehicle to use
    in motor sports or you are an individual involved in that. It
    is an activity that is deemed illegal now.
        Similar to your constituent, I hear from our SEMA member
    companies they are quite concerned. These are small businesses.
    They are in a position right now working under a cloud of
    illegality. They are hesitant in moving forward and need
    resolution to this.
        Senator Inhofe. You are familiar with Love's?
        Mr. Kersting. Yes.
        Senator Inhofe. Your observation is correct because there
    are all kinds of things in the Oklahoma media, just because
    they are looking for something to write, that they could be on
    that border. It is bad for them.
        Mr. Kersting. For certain. A point was raised about this
    matter of there being a loophole, a purpose or that the matter
    of intent somehow in this bill would create a new enforcement
    standard.
        I want to make very clear that the language in the RPM Act
    is actually drawn and reflects language that is in this section
    of the Clean Air Act for other exemptions. The word ``purpose''
    is in the law currently. Very importantly, the word ``intent''
    is in the prohibition currently.
        I think Mr. Walke raised the Casper case in his written
    testimony. The Casper case is a great example, and there are
    others, where a manufacturer of a product made a claim that the
    product is intended, in that case, for off-road use only.
    Others might say for race use only.
        That use of the words ``intent'' or ``purpose,'' they are
    interchangeable here, is not a shield against enforcement. In
    fact, EPA has successfully enforced against those who claim my
    intention was for this product to be a race use product or an
    off-road product.
        There is no loophole. Illegality is illegality. If that
    product ends up as a street tamper, EPA has the enforcement
    authority to go after it, and they do so successfully.
        Senator Inhofe. I know that concern is there.
        Mr. Henry, I am concerned about the impact of the EPA's
    MACT. The rule would have the brick industry in Oklahoma really
    concerned. Are you familiar with Oklahoma's brick industry?
        Mr. Henry. Yes.
        Senator Inhofe. They are all small. We don't have the
    giants; they are small businesses, family owned businesses, the
    kind we really encourage. We have 1,400 people employed in that
    industry. Most of the companies are very small, very similar to
    yours.
        The issue reminds me of the EPA's mercury rule that the
    Supreme Court overturned in 2015 because the agency did not
    take the cost of the rule into account. It is required by law
    that they do that. I think we are looking at the same thing
    here.
        The EPA has not been concerned about losing since the
    industry had already made the investments to comply with the
    illegal rule because the courts did not stay the rule. The
    courts are the proper venue for the issue, but as seen with the
    EPA's mercury rule, stays do not always happen. Was there a
    stay of the rule in the original case against the 2003 rule,
    Mr. Henry?
        Mr. Henry. Not to my knowledge, no. We had to be in
    compliance by 2006. The rule was vacated in 2007. In our case,
    we had spent $1.5 million to comply with a rule that vanished.
        Senator Inhofe. Just your company?
        Mr. Henry. Yes.
        Senator Inhofe. Do you have any ideas for the old industry?
        Mr. Henry. I can get that number for you. Offhand, I don't
    have that.
        Senator Inhofe. For the record, let's do that because I
    need that for my material.
        Thank you, Madam Chairman.
        Senator Capito. Thank you.
        Senator Carper. Thank you, Madam Chair.
        Thanks to all the witnesses.
        Mr. Walke, I haven't seen you in almost 48 hours. We are
    going to have to start putting you on a retainer if you keep
    showing up like this.
        Welcome, one and all. We are glad you are here.
        I want to follow up on what Senator Inhofe was pursuing.
    This would be a question for Mr. Henry and maybe Mr. Walke.
        Do you believe the EPA always has the needed industry
    information to write technology based standards? The second
    half of that question would be could industry do better in
    giving EPA a complete picture of their industry before
    regulations are written?
        Ms. Hammond.
        Ms. Hammond. EPA does use technology based standards. For
    example, MACT stands for Maximum Achievable Control Technology.
    That is a strict, standards based approach because it is for
    regulating toxics.
        Yes, the industry does provide information to EPA for all
    of its rulemakings when it involves regulating industry. It
    collects most of its data from the industry and looks to see
    what is achievable within that industry.
        Senator Carper. Thank you.
        Mr. Walke.
        Mr. Walke. Senator Carper, I have been a Clean Act attorney
    for 20 years, including at the EPA. During that time, EPA has
    been allowed by the Office of Management and Budget just once
    to go out and solicit data and real world information from
    industry about what technology they are using to comply with
    these air toxic standards.
        What we see is industry trade associations run to block
    that from happening, so unfortunately we get an incomplete
    picture of the full array of technology.
        For the brick and kiln rule, for example, by breaking the
    law in 2003, we left 106 out of 147 kilns in this country
    completely uncontrolled. The brick industry's trade association
    pushed a legal standard that was plainly unlawful. The D.C.
    Circuit overturned it unanimously and even vacated the rule.
        They knew what they were getting into. They wanted a rule
    that produced 106 out of 147 units uncontrolled. That is what
    they got, and unfortunately, that is why we are here today.
        Senator Carper. What role did Bill Wehrum play in the
    event? Do you remember? Was he at EPA at that time?
        Mr. Walke. Yes, sir, I do remember all too well. I was
    involved in that lawsuit. Mr. Wehrum was the senior counsel for
    the Air Office and subsequently, the head of the Air Office
    when that unlawful standard was issued after four different
    court opinions had overturned the almost identical legal
    interpretation.
        When he left EPA, Mr. Wehrum chose to go to work for the
    brick industry trade association to represent them in suing
    over the rules EPA was required to issue by the court as a
    result of Mr. Wehrum's being overturned. We have a bit of a
    door going on here.
        Senator Carper. Maybe just a coincidence.
        Mr. Walke. I will not speak to that.
        Senator Carper. The Diesel Emission Reduction Act, DERA, is
    one of my favorite pieces of legislation. Senator Voinovich,
    Senator Inhofe, and I worked on this for a number of years.
        Mr. Walke, with all of the work we have done on clean
    diesel, I know the diesel generators can be replaced and
    retrofitted to reduce emissions by, I am told, about 90
    percent. I also knew these clean diesel generators are
    reliable.
        It sounds like Alaska may not only need a little more time
    to comply with the Clean Air requirements, but maybe a lot more
    DERA funds to help the State quickly transition their diesel
    fleet. Do you have any thoughts on that?
        Mr. Walke. Yes, sir, Senator. DERA is one of the most
    important clean air bills ever introduced in this country. I
    hope we would see more widespread use of the funds going to
    clean up dirty diesel engines.
        The Alaska bill may be a special case. They may just need
    some additional funds to make sure those diesel generators are
    getting into remote areas. The air quality impact of this bill
    is certainly much, much less than others.
        It is unclear from the State of Alaska how many of these
    generators actually are operating. They are non-emergency
    generators, so they are not really going to critical crisis
    needs, but I think a DERA solution would be a well tailored
    one.
        Senator Carper. I have one last question, if I could, Madam
    Chair.
        This will be for the whole panel. I would like to hear from
    each of you briefly, if you could. Could any of these bills
    before us be improved upon to ensure we continue to meet the
    public health benefits of the original regulation while also
    giving industry a little more flexibility to comply than was
    maybe initially provided?
        Mr. Henry, do you want to lead off just briefly?
        Mr. Henry. What is being proposed for us is a timeline to
    give us the ability to make sure the technology is there. I
    don't think it is an endless ask. I think there have been some
    discussions of a 3 year instead of an open ended target.
        I think with the 3 year window, we could do a lot of things
    to ensure we could comply with the new brick MACT.
        Senator Carper. Thanks very much.
        Mr. Kersting. I think we have been able to hear there is
    consensus. There isn't much objection to the matter of the core
    purpose of the RPM Act, which is to allow conversion of street
    vehicles to use in racing.
        If there are some concerns with the specifics of the
    language, good faith concerns, in terms of how the bill is
    written or structured, SEMA stands ready to engage in
    constructive conversation about that.
        In that regard, I think we feel the bill is well tailored.
    It is very narrow, and it basically would just restore the
    status quo.
        Senator Carper. Thanks.
        Mr. Williams.
        Mr. Williams. All of our businesses are small businesses in
    rural communities. Our customers are rural users. We approve of
    the State and the regulations. We helped craft the information
    that crafted the NSPS.
        All this ruling is going to do for us is allow us a little
    extra time so we can meet Step 2. We are already making
    products that are 70 percent more efficient. All we are asking
    for is those continue on so we don't jeopardize the
    manufacturers, the employees, and eventually the end user.
        Senator Carper. All right.
        Ms. Hammond.
        Ms. Hammond. I agree with Mr. Walke's suggestions for the
    RPM bill. I think that would be an improvement. Along with
    everyone else, I have no disagreement over the purpose of the
    bill as written.
        I do want to note with the other three that in all of the
    underlying EPA rulemakings, that agency set forth a guide path
    to ensure that industry did have time to comply. It is my view
    that all of those bills would further extend something the
    agency already worked with industry to develop which is a
    reasonable timeframe for compliance.
        Senator Carper. All right.
        Mr. Walke, last word.
        Mr. Walke. First of all, I appreciate Mr. Kersting's
    constructive offer for dialogue to preserve the status quo. I
    do think there is a fix here that can be made that would meet
    all parties' objectives. I am not hearing real disagreement on
    outcomes here. It is just a matter of drafting, and I think
    there is a fix that can be done.
        On the wood stove bill, I am hearing concerns and valid
    concerns about inventory pass through and the extent to which
    already manufactured stoves might not be sold into the
    marketplace. That is not really a reason to extend emission
    limits for the entire industry of stoves.
        I think there is actually a compromise and fix that could
    address a legitimate concern about inventory rather than
    broadly extending the compliance dates for emission limits for
    the entire industry, including manufacturers already
    manufacturing compliance stoves.
        Senator Carper. Thanks so much.
        Madam Chair, thank you for being so generous with the time.
        Our thanks to each of you for helping us develop consensus,
    which is what we need. Thank you.
        Senator Capito. Thank you, Senator.
        I want to again thank all the witnesses for participating
    in today's hearing.
        Committee members will have 2 weeks to submit materials and
    questions for the record.
        This hearing is adjourned. Thank you.
        [Whereupon, at 11:26 a.m., the Subcommittee was adjourned.]
        [Additional material submitted for the record follows:]

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