[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,
Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800         
         
         
         
         
               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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
     
    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:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
    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:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
  
    
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
    
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
   
    
    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:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]