U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

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

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

27–895 PDF 2018

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 

( 

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

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

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 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

JONI ERNST, Iowa 

RICHARD SHELBY, Alabama 

JOHN BARRASSO, Wyoming (ex officio) 

SHELDON WHITEHOUSE, Rhode Island 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

THOMAS R. CARPER, Delaware (ex officio) 

(III) 

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 

(1) 

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. 

2 

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 cosponsor, 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 

3 

1Standards of Performance for Stationary Compression Ignition Internal Combustion Engines, 

80 FR 68808, 68811 (EPA Nov. 6, 2015). 2 Id. at 68812. 

3Letter from Dave Messier, Rural Energy Coordinator, Tanana Chiefs Conference, 1 (2017) 

(on file with author). 4 Id. 

5 Id. 

6 Id. 

7 Id. at 1–2 

8 Id. 

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. 

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. 

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 reVerDate Aug 31 2005 07:25 Jan 10, 2018 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6621 S:\_EPW\DOCS\27895.TXT SONYA
4 

9 Id. at 2. 

turn 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

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. 

5 

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 ProtecVerDate Aug 31 2005 07:25 Jan 10, 2018 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 S:\_EPW\DOCS\27895.TXT SONYA
6 

tion 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. 

7 

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. 

8 

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 

9 

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 

10 

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:] 

11 


27895.001

Testimony of 

Davis Henry 

President 

Henry Brick 

Selma, Alabama 

U.S Senate 

Environment and Public Works Subcommittee on Clean Air 

and Radiation 

Date: 

Time: 

November 14, 2017 

10:00 A.M. 
12 


27895.002

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. My name is Davis Henry. I am the President of Henry Brick, 

which has manufactured clay bricks in Selma, Alabama for over 70 years. I 

represent the third generation of Henry's to operate this plant. I also currently 

serve as the Vice Chairman of the Board for the Brick Industry Association {BIA), 

the national trade association that represents manufacturers and distributors of 

clay brick and pavers. I am here today to speak on behalf of both my company 

and my industry. 

Henry Brick currently employs 58 people, including our manufacturing, sales and 

support staff. That number grows to about 95 when we bring Plant 2 back online. 

It has been idle since June of 2008 due to the economy. As you can imagine, 

the last 9 years have been a very trying time for our company as well as the rest 

of the brick industry. We are committed to doing our share to protect our 

environment, but with a finite amount of resources, we need to be sure that we 

know what is required of us and that the target will not change once those 

resources are committed. I am here today because we were directly impacted by 

a previous moving regulatory target and I want to ensure that my company-and 

all remaining brick companies-are not victimized again. 

In 2003, the first maximum achievable control technology, or MACT, standard 

was promulgated for our industry. This rule applied only to major sources of 

hazardous air pollutants, or HAP, and only to the larger kilns in our industry. For 

our industry, with only two pollutants emitted in any large amount, the only 

definition of major source that really applies is a facility that has the potential to 

emit 1 0 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 until2006 

to install and begin operating control devices to meet the limits, which we did. 

We installed limestone based systems, called dry limestone adsorbers or DLAs, 

on both of our kilns at a total cost of approximately $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 for deficiencies. Unfortunately, most of 

us, including Henry Brick, were unable to turn off our control devices because our 

existing air permits would not allow us to stop operating the controls. During the 

compliance time for the 2003 Brick MACT, the number of controlled kilns in our 

industry soared from just over 20 to more than 100 kilns. 

In 2008, the EPA began developing the replacement MACT that eventually 

became the 2015 Brick MACT. To develop the standard, the EPA looked at the 

best performing kilns, including those brand new controls, to establish the limits. 
13 


27895.003

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, which the 

EPA estimates would cost approximately $3.8 million per kiln. EPA believes that 

there may be a solution 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 on a 

brick kiln- so I am uncomfortable relying on that estimate. The EPA's estimated 

emission reduction for an average kiln for mercury and metals is less than 400 

pounds per year for an uncontrolled source, so our incremental reduction from 

our controlled kilns would likely be lower. 

There is a way to avoid MACT compliance. In fact, EPA's first listed option for 

"complying" with the rule is to avoid the rule by becoming a "synthetic minor" 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. If you follow 

EPA's approach to assigning costs, you would assign an annual cost of less than 

$20,000 per year. 

Unfortunately, our most recent tests also demonstrate that we cannot become a 

synthetic area source with our current controls. 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- or it is possible that this demonstrates that the 

performance of a new control system could not be maintained over time. We are 

still investigating our data. The only option left to us to become a synthetic minor 

is to reduce our production, which is an extremely inefficient way to run a brick 

kiln. 

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 

not going to change. Just last week my friend AI Puckett, owner of Columbus 

Brick, which has been run by his family for 126 years, sold his company because 

of the uncertainty created by the current regulatory environment This is not a 
14 


27895.004

hypothetical issue to me. It is real. It happened to me. Please do not let it 

happen again. 

Thank you for introducing this bill and for taking the time to listen to me today. 

am happy to answer any additional questions you may have. 
15 

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 

16 

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:] 

17 


27895.005

Christopher J. Kersting 

CAE, President and CEO 

Specialty Equipment Market Association (SEMA) 

Chris Kersting has been president and CEO of the Specialty 

Equipment Market Association (SEMA) since July 2002. He is the 

fifth staff executive to lead the trade group since its founding in 

1963. 

As president and CEO, Kersting has led SEMA's growing influence 

in the automotive industry through a series of innovative programs 

and services that help the association's more than 6,600 member companies capture new 

business opportunities. With a focus on programs targeted to small businesses, he has 

championed initiatives that include industry collaboration on vehicle technology, industry data 

standardization, and strong legislative and regulatory advocacy. 

Kersting became a SEMA staff member in 1996 when he joined the Washington, DC office as 

vice president of legislative and technical affairs. As the association's lead representative in the 

nation's capital, he successfully urged lawmakers to pass bills that protected the interests of 

SEMA member companies and challenged government regulation in order to maintain 

innovation and growth in the aftermarket industry. 

Early in his career, Kersting worked for SEMA as outside counsel and government affairs 

representative. He also handled legal matters for SEMA member companies, as well as industry 

institutions such as the National Hot Rod Association (NHRA), Performance Warehouse 

Association (PWA) and Auto International Association (AlA). 

A Certified Association Executive (CAE), Kersting received his law degree from Washington 

College of Law, American University in 1989 and graduated from the University of Colorado with 

a Bachelor of Science degree in business in 1985. 

Born in Cincinnati, Ohio, Kersting currently resides in Pasadena, California, with his wife and 

family. 
18 


27895.006

Testimony of 

Christopher J. Kersting, President & CEO 

Specialty Equipment Market Association 

before the 

Subcommittee on Clean Air and Nuclear Safety 

on 

November 14,2017 
19 


27895.007

Introduction 

Chairwoman Capito, Ranking Member Whitehouse, and members of the Subcommittee, 

I appreciate the opportunity to speak with you today in support of S. 203, the "Recognizing the 

Protection ofMotorsports Act." With this legislation, Congress would re-affirm that the longestablished practice of converting street vehicles for use in motorsports is not a prohibited 

activity under the Clean Air Act. The motorsports community applauds Sen. Richard Burr for 

introducing S. 203, along with 38 other bipartisan cosponsors, including Enviromnent and Public 

Works Committee Chairman Barrasso, Subcommittee Chair Capito and Subcommittee members 

Sens. Inhofe, Boozman, Fischer, Moran and Ernst. 

My name is Chris Kersting and I am the President and CEO ofthe Specialty Equipment Market 

Association (SEMA). SEMA is a national trade association that represents more than 6,900 

mostly small businesses that manufacture, market and sell a wide variety of specialty automotive 

aftermarket products, including performance equipment for vehicles used in motorsports 

competition. 

The RPM Act clarifies that it has always been legal to make the emissions-system modifications 

needed to convert a previously street-legal motor vehicle into a racecar used exclusively at the 

track under the Clean Air Act (CAA). The bill also confirms that it is legal to manufacture, 

distribute, sell, and install race parts used to convert these vehicles for exclusive use on the track. 

In July of2015, the U.S. Enviromnental Protection Agency (EPA) issued a proposed regulation1 

declaring that the Clean Air Act prohibits converting a motor vehicle--defined as a car, truck or 

motorcycle designed for use on the public streets and highways-into a racecar. Under the EPA 

interpretation, manufacturing, selling and installing racing parts to accomplish such a conversion 

would also be a violation of the CAA. Although the EPA did not finalize the proposed rule, it 

maintains that the CAA prohibits racecar conversions along with the sale and use of racing 

products that can be installed on these vehicles. 

SEMA contends the EPA interpretation contradicts 4 7 years of previous EPA policy and 

practice. Further, the EPA position renders illegal the majority of current (and future) race cars 

and motorcycles and would devastate the 1,300 motorsports facilities located across the country. 

It will also crush thousands of small businesses that supply the products used in motorsports an 

industry that alone generates more than $1.6 billion in annual sales and provides tens of 

thousands of jobs across America. 

In response, the RPM Act was introduced as a narrowly-crafted bill which will restore certainty 

and the status quo under the law. The bill will preserve decades of American motorsport 

tradition, countless related small businesses and the many jobs they provide. 

1 Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and VehiclesPhase 2, 80 Fed. Reg. 40138 (proposed July 13, 2015). 

2 
20 


27895.008

EPA Position on the Clean Air Act 

Congress never intended for the EPA to regulate racecars. The Motor Vehicle Air Pollution 

Control Act of 1965 defined a "motor vehicle" as "any self-propelled vehicle designed for 

transporting persons or property on a street or highway." When the Clean Air Act Amendments 

were enacted in 1970, Congress clarified in conference committee deliberations that the term 

"motor vehicle" did not include vehicles manufactured or modified for racing.2 Then in 1990, 

Congress provided authority to the EPA to regulate nonroad vehicles and engines. Because the 

term "nonroad vehicle" could easily be construed to include race vehicles, Congress included 

language to expressly exclude from the definition vehicles used solely for competition.3 

Despite the clarity of congressional intent, the EPA's 2015 proposed rule made it illegal to 

convert a motor vehicle into a dedicated racecar and a violation of the tampering provisions, 

which are subject to civil fines and related penalties. The EPA proposed regulation read in part 

as follows: 

40 CFR § 86.1854-IZ(b) covering "Prohibited Acts" would be amended to add 

the following provision: 

(5) Certified motor vehicles and motor vehicle engines and their emission 

control devices must remain in their certified configuration even if they are 

used solely for competition or if they become nonroad vehicles or engines; 

anyone modifying a certified motor vehicle or motor vehicle engine for any 

reason is subject to the tampering and defeat device prohibitions of paragraph 

(a){3) of this section and 42 U.S.C. 7522(a)(3). [80 FR 40565] 

The EPA's interpretation would apply to any vehicle which started life as a street car or 

motorcycle originally certified to meet federal emissions standards-meaning that it is illegal 

to make any modifications that affect any emissions-related component, even if the vehicle is 

converted into a dedicated track car. 

For nearly five decades, the Act has allowed the modification of street vehicles for racing. 

During that time, the EPA has had, and has utilized, the clear authority under the Act to 

enforce against anyone who offers, sells or installs products that knowingly take a 

regulated street vehicle out-of-compliance. Opponents of the RPM Act have asserted that 

the legislation provides a loophole that allows racing equipment to be sold for use on the 

2 See House Consideration of the Report of the Conference Committee, Dec. 18, 1970 (reprinted in A legislative 

history of the Clean air amendments of 1970, together with a section-by-section index, U.S. LIBRARY OF CONGRESS, 

ENVIRONMENTAL POLICY DIVISION, Washington: U.S. Govt. Print. Off. Serial No. 93-18, 1974, p. 117) 

(Representative Nichols: "I would ask the distinguished chairman if I am correct in stating that the terms "vehicle' 

and "vehicle engine" as used in the act do not include vehicles or vehicle engines manufactured for, modified for or 

utilized in organized motorized racing events which, of course, are held very infrequently but which utilize all types 

of vehicles and vehicle engines?"; Representative Staggers: "In response to the gentleman from Alabama, I would 

say to the gentleman they would not come under the provisions of this act, because the act deals only with 

automobiles used on our roads in everyday use. The act would not cover the types of racing vehicles to which the 

gentleman referred, and present law does not cover them either."). 3 See 42 U.S.C. § 7550(10) (2016) ("The term 'nonroad vehicle' means a vehicle that is powered by a nonroad 

engine and that is not a motor vehicle or a vehicle used solely for competition."). 

3 
21 


27895.009

street. However, it is not apparent how the language of the RPM Act would bring about 

this result. The RPM Act does nothing to amend or alter EPA's enforcement authority. 

The agency will continue to have the full authority it has had in the past, and has today, to 

enforce against tampering violations. 

Economic Impact of the EPA Proposal 

Motorsports encompasses a wide variety of racing categories (stock, drag, sprint, etc.) and track 

types (oval, off-road, drag, etc.). Across the United States, far more racecars originate on an 

assembly line as street vehicles as compared to racecars that are purpose-built (e.g. dragsters, 

formula and midget cars). The converted street vehicles are driven mainly by amateur and 

sportsman drivers. 

There are about 1,300 race tracks across the country and most cater to organized amateur racing 

events. The tracks host thousands of annual local races along with test-and-tuning events. While 

professional racing receives more publicity, amateur racing has more participants. Drivers, race 

teams and spectators help drive local economies by filling up motel rooms and restaurants, and 

shopping at loc)il stores. In turn, these activities support jobs and generate tax revenues at the 

local, state and federal levels. 

To cite just a few states as examples, an estimated 23,000 Indiana residents are employed by 

motorsports companies.4 Indianapolis Motor Speedway alone contributes over $510 million of 

economic activity annually in Indiana.5 In Ohio, Summit Motorsports Park sponsored by 

aftermarket parts supplier Summit Racing has a $99.5 million economic impact on the 

surrounding community.6 In 2005, motorsports generated almost $6 billion for North Carolina's 

economy and supported more than 27,000 jobs.7 The state is home to more than 1,000 teams, 

tracks, businesses and educational institutions related to motorsports, including 90% of the 

NASCAR teams, with many based in the Charlotte region, home of the Charlotte Motor 

Speedway. 

At the local level, the Sonoma County Economic Development Board estimates that Sonoma 

Raceway in California generated nearly $2 million in regional economic impact for a single 

vintage race weekend. The Raceway demonstrates the nexus between racing and the economy. 

About 75 small businesses are in the adjoining industrial park where many of these vehicles are 

converted, modified, stored, prepared for events and fixed when they break. Those businesses 

employ hundreds of skilled technicians and they in turn support a range of high-performance 

parts and components manufacturers and distributors whose products are delivered to the facility 

daily. Sonoma Raceway employs about 80 full-time workers and another 300-400 people work 

4 Rich Van Wyk, Study Shows Motorsports Impact on Indiana &anomy, WTHR (Dec. 6, 2012), available at 

http://www.wthr.com/story/20281896/study-shows-motorsports-impact-on-indiana-economy. 

5 Drew Klacik, Estimating the Annual &anomie Contributions of Indianapolis Motor Speedway, INDIANA 

UNIVERSITY PUBLIC POLICY INSTITUTE at 3 (2013), available at http•//www imsprojectlOO.com/wocontent/uploads/20 13/07/Report Update. pdf. 6 https://www .summitmotorsoortspark.com/news/81-news/217 -economic-impact-study -released 7 The Economic Impacts and Occupational Analysis of the North Carolina Motorsports Industry for 

2005, The Belk College of Business, University ofNorth Carolina at Charlotte (January 2006), 

available at http://charlotteu~com/images/uploads/CharlotteUSA Motorsports Report 2006_pdf 

4 
22 


27895.010

every day in the industrial park. During large events, staffmg numbers can balloon as high as 

2,000-2,500 workers. This same pattern of small business employment and economic impact can 

be found at tracks located all around the U.S. 

Also figuring into the economic impact of motorsports is the racing equipment industry. The 

specialty equipment aftermarket employs about one million Americans across all 50 states, and 

retail sales ofracing parts and equipment alone make up a $1.6 billion market annually. Race 

vehicles are modified in shops across the nation and the vehicles are outfitted with safety 

equipment such as five-point seat belts, roll bars, cages and safety netting, suspension, wheels 

and tires. These sales and services would be eliminated if racing modifications are prohibited. 

Beyond specialty racing equipment, the EPA's interpretation would have a significant negative 

impact on the motorsports divisions of the major auto makers, divisions that include advanced 

product engineering and development, safety systems and sales and marketing. And the EPA 

itself would suffer a setback. The EPA's "Green Racing" program seeks to collaborate with 

industry and race sanctioning organizations to promote innovative product development through 

racing. The Program serves as a testing platform for new performance technologies that will 

eventually benefit the public when incorporated into mass-produced vehicles. The EPA's 

interpretation of the Clean Air Act would have a stifling effect on new products that could 

emerge through the Program. 

California: Express Exemption 

California's counterpart law to the federal Clean Air Act expressly exempts race cars and parts in 

both statute and regulation. California defines a "racing vehicle" as a competition vehicle not 

used on public highways. 8 

For parts that may be mistakenly or improperly installed on a highway vehicle, California 

instructs companies to mark the products "for race use only" and closely monitor sales to help 

ensure proper use. SEMA has urged the EPA to take the same approach. The RPM Act is 

consistent with California law. 

Conclusion 

The RPM Act is a necessary re-affirmation that street vehicles can legally be converted into 

dedicated race vehicles and that parts sold and installed on such vehicles are not subject to the 

requirements of the CAA. The RPM Act is narrow in scope. It does not create a loophole or 

seek major changes to the CAA. The EPA retains all authority provided to pursue tampering 

when defeat devices are illegally installed on street vehicles. SEMA has supported these 

enforcement efforts and will continue to do so. 

The EPA's interpretation of the Clean Air Act jeopardizes the legality of an important industry 

and the motorsports tradition enjoyed by tens of thousands of enthusiasts. The RPM Act 

provides a permanent solution by returning the law to what Congress intended. 

Thank you again for this opportunity to speak in support of the RPM Act. 

8 Cal Health & SafCode § 39048. 

5 
23 


27895.011

December 14,2017 

The Honorable Shelley Moore Capito 

Chairman 

Subcommittee on Clean Air and Nuclear Safety 

Committee on Environment and Public Works 

United States Senate 

410 Dirksen Senate Office Building 

Washington, DC 20510 

The Honorable Sheldon Whitehouse 

Ranking Member 

Subcommittee on Clean Air and Nuclear Safety 

Committee on Environment and Public Works 

United States Senate 

456 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Chairman Capito and Ranking Member Whitehouse: 

Thank you for the opportunity to testilY at the Subcommittee on Clean Air and Nuclear 

Safety's Nov. 14 hearing on S. 203, the "Recognizing the Protection ofMotorsports Act of 

2017" (RPM Act). Following-up on your Nov. 30 letter, below are SEMA's responses to the 

U.S. Environmental Protection Agency's Technical Assistance (TA) document and proposed 

bill text. SEMA's responses correspond with the EPA's enumerated statements in theTA 

and are as follows: 

From Senator Whitehouse: 

l. EPA supports an exemption from the tampering provisions of 42 U.S.C. § 7522(a)(3)(A) 

for the modification of certified motor vehicles into vehicles used solely for competition 

motorsports. 

• Response: SEMA welc<>mes the EPA statement supporting the exemption for modification 

of motor vehicles used solely for motorsports competition. The exemption language in the 

RPM Act is critically important to ensuring that racers, racing equipment suppliers and 

installers are not subject to tampering penalties under the Clean Air Act. 

2. EPA supports an exemption from the defeat device provisions of 42 U.S.C. § 

7522(a)(3)(B) for components used to modify certified motor vehicles into vehicles used 

solely for competition motorsports. 

• Response: Please refer to l. above. 

3. EPA has observed a growing market in electronic devices that can be used to render 

inoperative or remove the emission controls of certified motor vehicles. 

• Response: Please refer to 4. below. 

4. While some of these devices may be used to modify certified motor vehicles into vehicles 

used solely for competition motorsports, EPA has observed that the same or similar 

electronic devices can unlawfully be used to defeat emission controls in vehicles not used 

solely for competition motorsports (e.g., to render inoperative or remove the emission 

Specialty Equipment Market Association (SEMA} 

1317 F Street, NW; Suite 500; Washington, DC 20004 

Telephone: 202/783-6007; Fax: 202/783-6024 
24 


27895.012

2 

control systems in light-duty diesel trucks). This unlawful use can result in significant 

excess air pollution. 

• Response: SEMA is aware of this issue and the EPA's concern regarding defeat 

devices. Section 203(a) of the Clean Air Act (42 U.S.C. 7522 (a)) currently provides the 

EPA authority to bring enforcement action against those violating the law's antitampering provisions. The EPA has a record of successful enforcement actions using 

these provisions of the law. Where the EPA has indicated concerns that the RPM Act 

language would make enforcement more difficult, SEMA has offered changes to the Act 

that specifically address these concerns (please see modified RPM Act language below). 

5. This technical assistance therefore aims to regularize the sale and use of these 

electronic devices on vehicles used solely for competition motorsports, while retaining 

the prohibition against their use in other contexts. 

• Response: SEMA appreciates the EPA's commitment to ensuring that modification 

equipment may lawfully be used on vehicles that compete in motorsports competition. 

We recognize the need for the EPA to maintain its ability to enforce against products 

that are illegally used on roads and highways. The RPM Act clarifies in federal law 

that these products are lawful when used exclusively on race vehicles, including those 

converted from a motor vehicle. The bill does not impact the agency's ability to 

enforce against companies and individuals that circumvent the intended use of these 

products. As noted, the EPA's concerns with the specific language of the Act have 

been addressed in the modifications submitted herewith below. 

6. EPA believes that if an end user wants to render inoperative or remove the emission 

controls of a certified motor vehicle in order to race, the vehicle should no longer be 

registered for use on streets or highways. If an end user wants to retain the vehicle's 

registration for on-road use, the defeat device should not be installed, even 

temporarily. 

• Response: Please refer to 8. below. 

7. EPA therefore recommends an exemption in Section 2 ofS.203 from the tampering 

and defeat device prohibitions of the Act for vehicles that are no longer registered to be 

operated on a street or highway. 

• Response: Please refer to 8. below. 

8. This is a bright line test applicable at the point of sale and enforceable by a 

comparison of vehicle identification numbers collected at the point of sale to state 

motor vehicle registration information. Those that install these electronic devices on a 

vehicle registered for on-road use would be subject to the tampering prohibition of 42 

U.S.C. § 7522(a)(3)(A). Those that manufacture or sell those devices without taking 

adequate precautions that emission controls would be defeated only on vehicles not 
25 


27895.013

3 

registered for on-road use would be subject to the defeat device prohibition of 42 

U.S.C. § 7522(a)(3)(B). 

• Response: SEMA shares the EPA's goal of enabling racers to lawfully purchase and 

use race parts needed to compete in motorsports, while ensuring that these products do 

not show up on vehicles driven on roads and highways. However, the specific method 

and procedures to accomplish the law's intent should not be prescribed in statutory 

language, but should be properly developed through a rulemaking process that involves 

all stakeholders. 

SEMA is concerned that the point-of-sale requirement that the EPA is proposing will 

not be feasible and will lead to undue burdens for all parties in the supply channel. 

Motor vehicles are titled and registered at the state level. States have various systems 

and timetables to maintain vehicle registration data. Currently there is no VIN 

registration system that would be available to auto parts retailers. In some states, the 

time from de-registration of a vehicle to the time it is in the records database can vary 

from weeks to months. The racing equipment business is comprised mostly of small 

businesses. These small retailers compete for a household's discretionary dollarsagainst everything from sporting goods to patio furniture. Any system requiring weeks 

and months of delay will effectively kill the chance for these businesses to complete 

sales in a timeframe that reflects today's competitive retail environment. 

SEMA asserts that the current law provides authority to enforce against tampering and 

that the EPA has a record of successful enforcement actions. The RPM does not alter 

or reduce the EPA's capability to enforce the law. As noted, if the EPA believes more 

detailed measures are required, the agency should offer such measures as appropriate 

for notice and comment through the rulemaking process, not as prescriptions in the 

Clean Air Act itself. 

9. EPA would discourage an approach that focuses solely on the end use of the 

modified vehicle (e.g., by excluding from the definition of "motor vehicle" vehicles used 

solely for competition) because of the profound difficulty in policing the end use of 

vehicles. For example, though the end use approach excludes competition vehicles from 

non-road emission standards under 42 U.S.C. § 7550(10), EPA cannot determine how 

many of the approximately 85,000 competition dirt bikes lawfully imported each year 

are actually used "solely for competition." Accordingly, EPA proposes that Section 3 of 

8.203 be removed. 

• Response: In consideration of the EPA's concern, we agree to remove the 

RPM Act's proposed change to the definition of"motor vehicle" (Section 3 of 

S. 203), as we have in our draft legislation (below). 
26 


27895.014

4 

10. EPA proposes a two-year deadline in which to promulgate implementing 

regulations. 

• Response: The RPM Act provides the EPA one-year from enactment to issue 

regulations, which is consistent with other bills that require regulations. We oppose 

a two-year period to promulgate regulations, as it would be burdensome to raceparts businesses planning to invest in capital and employees. 

EPA Alternative RPM Act Language 

SEMA can agree to the EPA's proposal to change the anti-tampering provision from an 

exclusion to an exemption in Sec. 2 ofS. 203. 

We oppose adding legislative text stating "that is no longer registered to be operated on a 

street or highway" to 42 U.S.C. 7522 (a), as this language is tied to a very specific 

regulatory scheme, which would require the creation of a YIN database used for point-ofsale verification (See 8. Above). Sec. 2 ofS. 203, as originally drafted, clearly states that 

vehicles used "solely for competition" are the only modified motor vehicles that are not 

subject to tampering penalties. Consistent with the goal of ensuring converted vehicles 

are used exclusively for racing, SEMA proposes the addition of language to clarify that 

converted motor vehicles "will not be operated on a street or highway" (described in the 

section below). 

SEMA supports removing the proposed change to the definition of"motor vehicle" in Sec. 3 

ofS. 203. 

Finally, we recommend that Sec. 4 ofS. 203 (Sec. 3 ofthe EPA's version of the bill) not be 

amended. 

SEMA Alternative RPM Act Language 

Based on feedback from the EPA, members of the Senate Environment and Public Works 

Committee and the House Energy and Commerce (E&C) Committee, congressional staff, 

environmental groups, and other stakeholders, SEMA has drafted alternative language for 

S. 203 (below). 

SEMA's proposed text addresses concerns raised at the Sep. 13 E&C Subcommittee on 

Environment hearing regarding the use of the word "purpose" in Sec. 3 ofH.R. 350 

(Sec. 2 ofS. 203). Although "purpose" is used in similar exemption provisions of 

Section 7522(a), our proposed bill language removed the term to reinforce that what 

matters is in fact the end-use of a vehicle rather than the intended use of a part when it 

was produced or sold. 

SEMA proposes strengthening the RPM Act by adding language to Sec. 2 of S. 203 

stating that converted race vehicles, which are exempt from anti-tampering provisions of 

the Clean Air Act, "will not be operated on a street or highway." We also recommend 
27 


27895.015

5 

the addition of language clarifYing what is and what is not a prohibited act regarding 

the production, sale, installation and use of racing parts that bypass, defeat or render 

inoperative the emissions control system of a motor vehicle and converted race vehicles. 

Given the EPA's concerns raised with amending the Clean Air Act's definition of a motor 

vehicle, we agree to remove Sec. 3 ofS. 203. 

The revised RPM Act text below addresses the concerns of stakeholders while allowing 

the conversion of street vehicles for racing and the availability of race parts. 

SEMA Proposed Amendments to S. 203 

II 5TH CONGRESS 1ST SESSION 

S.203 

To reaffirm that the Environmental Protection Agency may not regulate vehicles used solely 

for competition, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 24,2017 

Mr. BURR (for himself, Mr. ROUNDS, Mr. RUBIO, Mr. TILLIS, Mr. CRAPO, Mr. 

HELLER, Mr. GRAHAM, Mr. BOOZMAN, Mr. MORAN, Mrs. ERNST, Mr. MANCHIN, 

Mr. INHOFE, Mrs. FISCHER, Mr. TESTER, and Mr. DONNELLY) introduced the 

following bill; which was read twice and referred to the Committee on Environment and 

Public Works 

A BILL 

To reaffirm that the Environmental Protection Agency may not regulate vehicles used solely 

for competition, and for other purposes. 

Be it enacted by the Senate and House of Representatives of the United States of 

America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the "Recognizing the Protection ofMotorsports Act of 

2017" or the "RPM Act of2017". 

SEC. 2. EXCLUSION EXEMPTION FROM ANTI-TAMPERING PROVISIONS. 

Section 203(a) of the Clean Air Act (42 U.S.C. 7522(a)) is amended by adding at the 

end the following: "No action with respect to any device or element of design described in 

paragraph (3) shall be treated as a prohibited act under that paragraph if the action is-fer.tll:e 

~results in the modification ofmeaizyiag a motor vehicle into a vehicle to be used 

solely for competition and which will not be operated on a street or highway.". 
28 


27895.016

6 

It shall be a prohibited act to manufacture, sell or install a part or component to bypass, 

defeat or render inoperative the emissions control system of a motor vehicle. 

It shall not be a prohibited act to manufacture, sell or install a part that is used on a vehicle 

to be used solely for competition. 

SEC. 3, DEFINITION OF MOTOR VEHICLE. 

Seetiea 21 6(2) efthe CleaR Air Aet (42 U.S.C. 755()(2)) is ameaaea 

(I) ay strikiag "(2) The tefffi" aad iasertiag the fellawiag: 

"(2) MOTOR VEHICLE. 

"(A) il-l GE}IERAcb. Tile tefffi"; aHa 

(2) 13~· addiag at the ead the fellowiag: 

"(B) EXCLUSIOn The tefffi 'motor vefiiele' aoes aot iaelwae a vefiiele wsed solely fer 

eompetitioa, iaelwaiag a vehiele wsed solely fer eempetitioa that •Nas eoa•;erted from a 

motor Yeftiele.". 

SEC. 3. REGULATIONS. 

Not later than 1 year after the date of enactment ofthis Act, the Administrator of the 

Environmental Protection Agency shall finalize any regulation necessary to implement the 

amendments made by this Act. 

If you would like further clarification regarding any of the answers provided or our 

proposed amendments to S. 203, please don't hesitate to contact me. 

Sincerely, 

~ Christopher J. Kersting 

President & CEO 
29 

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. 

30 

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:] 

31 


27895.017

Paul Williams 

Vice President of Business Intelligence 

United States Stove Company 

Bridgeport, AL 

Paul Williams joined United States Stove Company as 

the sales coordinator in 1994, was promoted to National 

Sales Manager in 2001 and moved to Vice President of Business Intelligence in 2015. 

He has responsibility for the ERP and network operations, strategic reporting, patents 

and trademarks and inventory management. While also serving as a voting ASTM 

member, helping to develop testing protocols for the Hearth Industry. He brings a wealth 

of management experience to his current role, and has a record of success developing 

and implementing solutions to maximize top- and bottom-line performance through all 

sales channels. He is a team leader who excels at building customer relationships to 

drive growth and profitability. He is also active in his community and serves on the 

board of local Rotary Club, Past President and Rotary District Leadership. Other 

experiences includes serving as Industry Expert for the EPA Regulatory Development 

and Government Affairs and Chairperson of the Warm Air Furnace Caucus for NSPS 

(New Source Performance Standard). Mr. Williams attended University of Tennessee of 

Chattanooga majoring in Chemical Engineering from 1982-1984 before joining the 

Professional Bowlers Association and graduating from PBA school in Cincinnati, OH in 

1987. 
32 


27895.018

UNITED STATES STOVE COMPANY 

Tradition, Quality, & Value since 1869 

Statement of Paul Williams, Vice President of Business Intelligence, United States 

Stove Company 

before the 

Senate Committee on Environment & Public Works 

Subcommittee on Clean Air and Nuclear Safety 

November 14, 2017 

Thank you Chairwoman Capito, Ranking Member Whitehouse, and members of 

the Subcommittee for holding this hearing today on S. 1857. 

My name is Paul Williams and I am the Vice President of Business Intelligence at 

United States (U.S.) Stove Company. Our company is a fourth generation, familyowned small business that manufactures heating appliances with headquarters in rural 

middle Tennessee, where we are the third-largest employer in the area, and 

manufacturing in Bridgeport, Alabama, where we are the second-largest employer. We 

provide jobs for over 150 people. We offer a full range of affordable heating products, 

covering a broad variety of product types including wood and coal stoves, wood and 

pellet stoves, wood furnaces, coal furnaces and boilers, wood- and pellet-burning 

outdoor cooking appliances, and various gas and oil-fueled products. 

As a cornerstone of the industry, started in 1869, we became the largest 

woodstove manufacturer in the world after the U.S. Civil War. Our growth continued 

with acquisitions until the early part of the 1900s when World War I and the Great 

Depression produced a difficult economy. U.S. Stove Company rebounded after these 

tough times and again experienced growth through the popular mail-order catalog 

business of Sears, Roebuck & Company. The rollercoaster ride continued through 

World War II and the oil embargo in the early 1970s. Being in business continually 

since 1869, it is our many years of experience that affords us a unique insight of our 

industry, our customers, and our own company. 

All of our wood- and pellet-fueled residential heating appliances are affected by 

the EPA's emissions standards, known as New Source Performance Standards (NSPS) 

for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air 

Furnaces. Today I am speaking on behalf of all manufacturers and retailers- most of 

whom are small businesses - who manufacture or sell one or more of the three 

categories of appliances impacted by these standards: (1) wood and pellet stoves, (2) 

forced-air furnaces ("wood furnaces"), and (3) hydronic heaters. The first set of NSPS 

standards ("Step 1") began to come into effect May 15, 2015, while Step 2 will come 

into effect May 15, 2020. It is important to understand that products not meeting the 
33 


27895.019

Step 2 standard cannot be manufactured or sold after May 2020. That means that the 

significantly cleaner Step 1 products we just finished developing will not be available to 

consumers at that time. 

I want to strongly emphasize that we support federal standards for wood heating 

appliances. Our veteran management team, with more than 150 years of combined 

industry experience, contributed in developing the first NSPS in the 1980s and worked 

closely with the EPA and other stakeholders in developing today's standards. We have 

a firm grasp on the importance of environmental responsibility in new product 

development and associated costs, achievable timetables and getting products to 

market, along with many variables that affect the retail landscape. However, today's 

standards must be implemented within a reasonable timeframe in which we can develop 

cost-effective means of achieving emissions limits. We want to partner with EPA to 

produce regulations that improve air quality while at the same time preventing an 

economic disaster for our industry. 

Without extra time to meet Step 2, the wood heater market will be adversely 

affected by reduced consumer choice and major price increases, impacting the end 

consumers' ability to purchase cleaner products to replace older, non EPA-certified 

appliances. Reduced sales will ripple through the industry hurting retailers and 

manufacturing jobs. For U.S. Stove, we'd have more time to 10!..1.2 properly design and 

test woodburning products that are safe and reliable for consumers while effectively 

meeting the required emissions limits. Keep in mind that people trust us and our 

products enough to have a live fire in their home. We take that responsibility seriously. 

We test our products for safety and durability, not just for emissions. We need more 

time to accomplish the task at hand. 

TIMING AND SEASONAL IMPACTS 

After 148 years, U.S. Stove Company is still a leading supplier of renewable 

energy-fueled alternative heating systems to the big retail chains and independentlyowned farm implement and hardware stores. Our substantial penetration in these 

segments gives us a major market share and keen understanding of product demand, 

changes, and profitability with these price-sensitive retail partners. Our typical 

customers live in rural communities and are low-to-middle income families looking for 

affordable sources of heat. We pride ourselves in providing a diverse variety of 

affordable heating options for consumers, and throughout the different divisions in our 

company we sell products designed to be the most affordable and some of the most 

reliable alternative options in the market. 

Since woodburning products are used seasonally, there are seasonal windows 

of opportunity for selling them that can make or break a company. As a manufacturer, 

we are currently in the final, third phase of seasonal product demand, between 

September and December, the main selling season. On average, sales volume 

diminishes by the end of February. Retailers will attempt to balance inventory in 

preparation for spring seasonal supplies such as lawnmowers, grass seed, and grills. 

2 
34 


27895.020

With most of the companies in our industry being small businesses, their inventory is 

their banking collateral, which affords them their cash flow. The harmonious seasonal 

relationship between the manufacturer, retailer, and customer is a tricky one and 

presents multiple challenges. 

Small retailers and consumers are being affected, today. 

Take the example of one of our accounts in West Virginia, Persinger 

Supply in Prichard, WV. We have worked with Dusty Vanzandt there for 

two decades. The Step 1 wood furnaces standards (which went into effect 

in 2016 for small furnaces and 2017 for larger furnaces) have already 

affected his sales, mostly because the units are more expensive and there 

is less consumer choice. In 2015, he sold 42 furnaces. Last year in 2016, 

that number dropped to 11. So far this year, he has sold 8 furnaces. We 

attribute this reduced demand solely to price increases. The wood 

furnace market is still adjusting to this NSPS Step 1 regulation. Before 

this rule, the cost of a wood furnace was $1,000. Now, an EPA-certified 

furnace costs $2,000 at retail. As mentioned earlier, price-sensitive 

retailers and consumers cannot stomach 100 percent price increases very 

well. This will hopefully settle over time, but without more time to try to 

meet Step 2 this part of the wood heater industry will no longer exist. We 

have concerns about the effect of price increases in other product 

categories as well. 

Although the effective date of Step 2 is May 15, 2020, in reality we need to have 

products ready for Step 2 by October 2018. Here is why: In October 2018, larger 

retailers will review available product lines of all companies and evaluate which 

products they'll sell in the 2019-2020 heating season. May 2019 falls at the time when 

retailers submit their purchase orders to manufacturers for products they will sell in the 

2019-2020 heating season. Retailers are not going to purchase products that they 

won't be able to sell after the next heating season. 

This means we need to know exactly which products we'll be presenting and 

manufacturing months before meeting with retailers in fall 2018. If we don't have a 

product certified and ready to be presented at that point, we miss out on an entire year 

of business for a product line. This reduces product choice for the consumer and limits 

opportunities for small business retailers. Figure 1 illustrates the business cycle we 

face with a large retailer. EPA certification of a product must happen before it can go 

through any of the below steps. 

3 
35 


27895.021

Figure 1. Business Cycle for Manufacturers of Residential Wood Heaters: 

Timeline for a Large Retailer (i.e. Lowes, Home Depot) 

2018 2018-2019 2019 2019-2020 

September- November- February- May June-July SeptemberOctober January April March 

Manufacturer Manufacturer Manufacturer Appliances 

meets with purchases starts Retailer are shipped 

retailer( s) to steel and other production to submits to distribution Peak selling 

review materials in fulfill estimated PO to facilities to be time 

process and advance of purchase manufacturer sent to 

appliances production orders (PO) retailers 

In the face of this extended business cycle, we need to have our EPA certificates 

in hand no later than early fall2018 -less than a year from now. As a practical reality, 

we cannot offer for sale or produce any products that aren't Step 2-compliant by that 

point. After the retailer reviews appliances and prices, we purchase the steel and other 

materials in advance of production. We start production for fulfilling purchase orders 

between February and April of 2019. Throughout the summer, we ship appliances to 

distribution facilities to be sent to retailers in time for the fall selling season. 

Retailers are already basing business decisions on 2020. 

One manufacturer has told us that during their most recent October line 

review meeting with a large retailer, the nation-wide retailer stated that 

they wouldn't be purchasing any products in the future that didn't meet the 

2020 standard. This decision was made in fear of being stranded with 

products in stores that couldn't be sold after May 15, 2020, even though 

we are well over two years away from that effective date. 

EMISSIONS AND SAFETY TESTING STANDARDS THAT WE FACE 

Extending the Step 2 effective date by three years would allow the heating 

industry to feasibly amortize our time-based resources and the available company 

finances for design, development, and testing of new products over a more achievable 

period of time to try to be able to offer compliant products ready for the marketplace. 

Our company has been heavily affected by the NSPS as we manufacture 

products for the U.S. market that are in four of five affected product categories (wood 

and pellet stoves, single burn rate woodstoves, and wood furnaces). One of these 

products, wood furnaces, was previously unregulated prior to the NSPS rule. Under the 

NSPS rule, standards for furnaces had different effective dates, with regulations for 

small furnaces coming into effect in May 2016 and for large furnaces in May 2017. It 

takes a large capital investment and anywhere from nine to 15 months to bring a single 

product from concept to a finished item ready for market. Plus the time it takes to 

receive a certificate from EPA Up to this point, meeting these deadlines has consumed 

ALL the available time-based resources our company has at its disposal as well as all 

available working capital for new product research, development, and testing. Now we 

4 
36 


27895.022

have to start this process all over again since our products in the furnace category don't 

yet meet the 2020 standards. 

Without more time to test products, which would be provided by S. 1857, U.S. 

Stove Company will very likely only be able to offer a very limited product line by the 

2020 compliance deadline. With limited products to offer for sale, our company will lose 

key accounts and customers, which would ultimately compromise the viability of our 

company and the people we employ moving forward. We currently offer 46 wood 

burning appliance models. Looking ahead to 2020, we expect to have all pellet stoves 

(13) pass, but they will have to be re-tested at around $20,000 per model. We will likely 

have less than five woodstove models (down from 28) to sell in 2020 and no furnaces 

that will meet the 2020 standards. That is nearly a two thirds reduction in the appliance 

models we offer today. Here we will experience significant cost between $250,000 to 

$500,000 per model for research and development and testing expenses to try to meet 

2020 requirements. 

The testing process and test lab is very similar to making a trip to the DMV. You 

wait in line at the DMV for a few hours with all of your necessary paperwork in-hand. 

You get to the front of the line, but you are told that you are missing one form. You then 

have to get out of line, find and fill out that one form, and then get back in line and start 

all over again. When we have to start over testing, we still have to re-apply with the lab 

for lab space. There are other manufacturers who have signed up months in advance, 

as we do, for test lab space. With only five test labs in North America accredited by 

EPA to test wood heaters, a test lab logjam will worsen as we get closer to the 2020 

effective date. Some manufacturers, even if they feel their product is ready for final 

testing, often need to wait months for their appointment with a testing lab. 

After completing and passing emissions testing at the lab, we then have to wait 

months for EPA to review our test report and certify our product as EPA-certified. For 

wood furnaces, after receiving an EPA certificate for emissions, we still need to test the 

units for safety and durability. This process can also take months. If any changes need 

to be made after safety and durability testing, that unit has to again be re-tested for 

emissions at a lab and again certified by EPA since changes were made. As you can 

see, this process takes time, sometimes over a year, before a new or modified product 

can even make it to market to the consumer. 

We are very concerned about EPA's ability to certify products by 2018. In 

addition, we face a log jam getting products tested by the five test labs approved by 

EPA to test wood heaters. In one year, one lab processed 14 wood heaters. Another 

processed only six appliances and half were sent back for more work. Once the lab 

approves it, the EPA has to review the test results, often taking 3-4 months for this 

industry. As the deadline gets closer, hundreds of appliances will need EPA testing and 

certification in a very short timeframe. There is not enough capacity to get through the 

process in time. 

5 
37 


27895.023

With the current backlog of test reports to be reviewed at EPA's Office of 

Enforcement and Compliance Assurance (OECA) (currently in excess of three months 

per model in our experience), the government's ability to issue a certificate for our 

appliances alone would create such a backlog it would decimate the industry. Even if 

investment capital and time allotted for design, development, and testing were not an 

issue, U.S. Stove Company (and all the other products manufactured by the wood 

heater industry) would not be certified in time. 

This issue of testing and certification delays continues today for us and other 

wood heater manufacturers. We predicted much of this would happen in our 2014 

comments to EPA on the proposed NSPS, which can be found as an attachment to this 

statement. Much of what we warned EPA about in 2014 is described in this statement 

as these issues did occur as foreseen by industry. 

IMPACTS ON AIR QUALITY 

Delaying Step 2 by three years (from May 15, 2020 to May 15, 2023) will not 

have a significant impact on air quality. Two of the regulated product categories 

(furnaces and hydronic heaters) were not regulated before the rule came into effect in 

May 2015. Those products have made significant emissions reductions since 2015. 

For instance, EPA estimated that the Step 1 standard for hydronic heaters represented 

over a 90% reduction in emissions. All products covered by the NSPS will remain 

regulated under Step 1 if Congress were to grant an extension of Step 2. In order to 

achieve meaningful reductions in emissions, we have to motivate end-users to replace 

the older pre-NSPS heaters (the vast majority of heaters in use today) with new ones. 

To do that, the new units need to be affordable and available. 

Changeout programs produce results. 

As an example, one changeout program in Libby, Montana replaced the 

entire town's 1,130 olderwoodstoves and replaced them with newer, EPAcertified stoves. Research done by the University of Montana showed that 

indoor air quality improved by 70 percent in the winter after the changeout 

program compared to the year before the program. Outdoor air quality 

was found to have improved by 30 percent. 1 

The true emission reductions come from changeout programs: replacing older, 

non EPA-certified wood heaters with today's new, EPA-certified appliances. However, if 

the price of appliances increases, two things will happen. First, there is an incentive for 

consumers to repair their higher emitting, uncontrolled appliances rather than replace 

them with EPA-certified appliances. Second, there will be less opportunity to change 

out as many units as possible. If furnace or hydronic heater manufacturers are 

regulated out of existence, there won't be any suitable option for a consumer looking for 

1 Hearth, Patio & Barbecue Association. (2008). Preliminary Report: Clearing the Smoke: The Woodstove 

Changeout in Ubby, Montana. Retrieved from 

https:/lwww.hpba. org/Portals/26/Documents/Government%20Affairs/Libby Report-Final. pdf?ver=2017-

06-13-082448-233 

6 
38 


27895.024

a 1-to-1 replacement for their wood heater. Why strive for perfection at the cost of 

eliminating part of an industry? And the irony is that in a rush to improve air quality in a 

hurry-up process, we are creating incentives to hold onto older, much dirtier products for 

longer and slow down air quality improvements. 

CONCLUSION 

Without this extension of Step 2, I fear that my company, the hearth industry, and 

consumers (your constituents) would needlessly suffer as a result. Our industry wants 

federal standards, but they must be cost-effective and achievable. With more time, 

provided by S. 1857, we can continue with R&D and testing as we work to try to meet 

Step 2 of this regulation. The existing deadline is infeasible. I thank the subcommittee 

for the opportunity to provide feedback on the current and future impacts of the EPA's 

emissions standards for wood heaters. 

7 
39 


27895.025

ATTACHMENT 

U.S. STOVE COMPANY WRITTEN COMMENTS SUBMITTED TO EPA ON 

PROPOSED RULE: NEW SOURCE PERFORMANCE STANDARDS FOR NEW 

RESIDENTIAL WOOD HEATERS, NEW RESIDENTIAL HYDRONIC HEATERS AND 

FORCED-AIR FURNACES 

(APRIL 30, 2014) 

8 
40 


27895.026

Docket ID No. EPA-HQ-OAR-2009-0734 

United States Stove Company 

Written Comments 

On 

Environmental Protection Agency 

Proposed New and Revised New Source Performance Standards 

For New Residential Wood Heaters, New Residential Hydronic Heaters and 

Forced Air Furnaces and New Residential Masonry Fireplaces 

April30, 2014 

I. Executive Summary 

United States Stove Company (USSC) submits these written comments to highlight areas of agreement, 

concerns, interest and our recommendations regarding the Environmental Protection Agency's (EPA) 

new and revised New Source Performance Standards (NSPS) for hearth appliances under Section Ill of 

the Clean Air Act, published in the Federal Register on February 3, 2014. 

While we are in agreement with the EPA that review of particulate standards for our appliances is 

warranted, we have concerns about: 

1) the use of defined and proven testing protocols to realistic emission requirements; 

2) the proposed compliance transition period and limitations to sell product at retail; 

3) the economic impact of the proposed rule on our industry, manufacturers, retailers and 

consumers; and 

4) real-world issues, consequences and unintended adverse outcomes if the proposed rule is 

implemented as currently written. 

USSC wants to partner with the EPA to produce regulations which improve air quality while at the same 

time preventing an economic disaster for our industry. In short, we agree with the EPA's goal, but we 

disagree with the flawed process it proposes to use to accomplish it. We strongly disagree with Step 2 

limits in all product categories, for reasons that the Hearth Patio and Barbecue Association (HPBA) has 

enumerated in its detailed comments. We know that if these limits are imposed, this industry will be 

devastated to the point that it will no longer exist in any meaningful capacity. 

Many manufacturers, including USSC, produce several categories of products that are facing regulation, 

most for the first time in history, which greatly exacerbates problems on all fronts. Not only are we 

faced with a "crash course" to bring our products into compliance with the proposed NSPS's, we are also 

faced with daunting challenges in deciding how we address retail markets', the immense financial 

1 See Corrected Transcript Aprill, 2014 (A80197F) for Public Hearing: Proposed Revisions to the Standards of 

Performance for New Residential Wood Heaters, February 26, 2014 page 10 lines 1-8: At the public hearing in 

Boston, MA on February 26, 2014, Greg Green of the EPA stated that it is not the Agency's intent for the proposed 

NSPS to affect wood heater inventory for stores and any heater currently in home use. We are sure Mr. Green was 

being sincere and straightforward in his statement. As noted above, the impact of the rule, as currently proposed, 

is contrary EPA's stated intent. 

1 
41 


27895.027

burden of short term compliance and most importantly, our own ability to make a profit while doing so. 

Given adequate time and reasonable emission goals, the industry will develop compliant products as the 

market demands, but the key to doing so is having a reasonable pragmatic time frame within which to 

do so. In order for us to help the EPA improve the emission performance of wood burning products, 

common sense demands that sufficient time must be allowed for manufacturers to design, test and 

perfect compliant products for the market. 

As a responsible, family-owned small business with a long history of excellence in seasonal appliance 

development and manufacturing, a founding member of the HPBA and an active participant in the 

development of the first NSPS for our industry, it is our strong desire and commitment to partner with 

the EPA, HPBA and other interested parties to achieve responsible standards that are essential to 

properly addressing the economic concerns, energy needs and air quality issues that are now at the 

forefront of national and state agendas. These are complicated issues demanding reasonable, common 

sense compromise between the regulating body and our industry. Failure to do so will be catastrophic to 

many worthy small businesses, including USSC. 

II. Our History and Unique Perspective 

We are a fourth generation family owned small business which is the oldest manufacturer of affordable 

renewable energy powered heating appliances in the United States. Headquartered in the small town of 

South Pittsburg, TN, we now operate four facilities in four states: Tennessee, Alabama, Michigan, and 

Oregon. We offer a full range of affordable heating products, covering a broad range of appliance types, 

l!!! of which are affected by EPA's proposed NSPS. 

As a cornerstone of the industry, our early years produced great success as we became the largest wood 

stove manufacturer in the world after the Civil War. Our growth continued with acquisitions until the 

early part of the 1900's when World War I and the Great Depression produced a difficult economy. USSC 

rebounded through these tough times and again experienced growth through the popular mail-order 

catalog business of Sears, Roebuck & Company. The rollercoaster ride continued through World War II 

and the oil embargo in the early 70's. Being in business continually since 1869, we have endured many 

personal and economic hardships. Forged during wars and the Great Depression to an oil shortage and 

market collapses, it is our many years of experience that affords us the unique insight on our industry, 

our customer and our own company. 

Our veteran management team, with over 150 years of combined industry experience, was instrumental 

in developing the first NSPS and has worked closely with participants to respond responsibly to the 

proposed NSPS. These industry professionals have a firm grasp on the importance of environmental 

responsibility in new product development and associated costs, achievable timetables and getting 

items to market, along with the many variables that affect the retail landscape. Their input is the basis 

for these comments. 

Ill. Our Commercial Partners and Seasonal Markets 

After 145 years, USSC is still a leading supplier of renewable energy fueled alternative heating appliances 

to the big retail chains and independently owned farm implement and hardware stores. Our substantial 

penetration in these segments gives us a major market share and keen understanding of product 

2 
42 


27895.028

demand, turns and profitability with these price sensitive retail partners. We pride ourselves in 

providing a full range of affordable heating options for the consumer, and throughout the different 

divisions in our company we sell products designed to be the most affordable and some of the most 

reliable alternative options in the market. Due to our distinct niche in the marketplace, we bear the 

main burden of providing affordable wood-fueled heating to American families. Our scope goes far 

beyond our abilities to just provide affordable heating, as we also provide a full range of products that 

serve the builder/contractor and specialty hearth markets through our Breckwell, Vogelzang, Ashley and 

HomComfort brands. 

Since wood burning products are used seasonally, there are seasonal windows of opportunity for selling 

them that can make or break a company. At retail, the bulk of the heating appliance selling season runs 

from around Labor Day to December. Depending on winter weather conditions or special sales 

promotion events, Ql sales figures can vary greatly (up to 300% swings observed over the past 5 years). 

On average, sales volume diminishes by the end of February. Retailers will attempt to balance inventory 

in preparation for spring seasonal supplies. lawn mowers, grills and pools are the next challenge for the 

seasonal buyer. With most of the small businesses in manufacturing for this market, their inventory is 

their banking collateral, and it affords them their cash flow. The harmonious seasonal relationship 

between the manufacturer, retailer and customer is a tricky one and presents multiple challenges. 

At the manufacturing level, we see seasonal product demand in three phases. The first phase is actually 

the last (December-March). How effective were the marketing efforts and how well did we do in the 

season? How is the inventory pipeline? These questions are often impacted by events or uncontrollable 

variables. With heating appliances, was there a winter? Was there a driving force, beyond marketing 

efforts, that impacted sales? In recent years fuel supply shortages, fluctuations in weather patterns and 

economic conditions affect inventories both positively and negatively. Once the inventory situation is 

evaluated, we enter the second market phase (April-September). This is the stocking stage and 

produces an initial surge of product entering the market place. Balanced with what is left in the pipeline 

and marketing expectations, long lead time items are critical challenges during this seasonal phase and 

the next. Product that is a little late is often too late. The third seasonal phase (September.-December) 

is in-season demand and fulfillment. It is considered the reaction phase. How is demand reacting to the 

marketing efforts and what is the manufacturer's ability to supply the inventory needed? Balancing 

resources and communications are critical in each phase where mistakes can be magnified leading to 

disastrous results. When we introduce or launch new products for the year, there is typically a soft 

cutoff date in the middle of the second phase (April-September) during which if product is not ready to 

ship, it will not be picked up by our retailers and the capital investment in the product will have to be 

borne by the manufacturer for another year. 

Having a network of financially healthy manufacturers and retailers is the key to maintaining a healthy 

industry and is the vital link to offering the consumer new compliant products. The market phases and 

characteristics described above have a direct impact on determining what a reasonable time frame is for 

implementation and compliance with any new NSPS affecting our products. 

We have organized our comments based on the products we currently sell that are directly affected by 

the proposed NSPS: wood heaters, wood pellet heaters, forced-air furnaces, and single burn rate wood 

heaters. Each one of these products presents a unique set of circumstances that warrant explanation. 

We have contributed to the comment efforts of the HPBA, both financially and substantively, regarding 

the proposed NSPS so we will not repeat those points. As industry experts we can help EPA achieve its 

ultimate goal of emission reductions by offering advice on setting realistic and justified emissions limits. 

We can also advise on providing adequate transition time relief, including grandfathering, so that in a 

3 
43 


27895.029

reasonable time frame we can develop cost effective means of achieving those limits so the market will 

with not be adversely impacted by major price increases, and the end consumer is able to buy cleaner 

products to replace their older non-NSPS compliant products. 

IV. Financial Impact of Compliance 

USSC has S1 skus that were previously exempt under the current Subpart AAA: 1S pellet heaters 

($15,000), 19 being single burn rate or utility heaters ($356,250), 17 forced-air furnaces ($356,250). 

There are an additional 2 adjustable burn rate wood heaters ($356,250) that are not Step 1 compliant. In 

some product categories the EPA estimate of $356,2502 for compliant unit development is too low. We 

will nevertheless use the EPA estimate for single burn rate heater, forced-air furnaces, and adjustable 

burn rate heaters in our analysis since EPA clearly noted that this was an assumed number for all 

product categories. Also, in the case of pellet heaters, we believe that they can meet Step 1 of the 

proposed NSPS in most cases and thus we will assume $15,000 as testing, shipping, and administrative 

costs associated with becoming EPA certified. Combining the costs in all categories, we estimate that the 

capital investment due upon promulgation under the proposed compliance timelines to continue 

business as usual would be in excess of $13.5 million. This level of investment is not financially viable in 

a short timeframe. As a small business, we do not have the liquid capital and we cannot borrow enough 

money for research and development to meet those financial demands. The limits and testing 

methodologies for all categories of our products make proposed Step 2 unachievable. For that reason, 

we are unable to provide a realistic cost estimate to bring our products into compliance. 

V. A Practical Overall of the Proposed NSPS 

The Step 2 emissions requirements together with the proposed methodologies are currently impractical 

and unachievable. Pushing the limits beyond Step 1 is not the "Best System for Emission Reduction" 

(BSER) mandated in Chapter 111 of the Clean Air Act, because the requirements are not achievable and 

cost effective for the industry. Ironically, the proposed Step 2 limits will ultimately not achieve the goal 

of reducing overall emissions from wood burning appliances in any meaningful way, and will surely 

reduce the overall size of the woodstove marketplace to virtual non-existence. The HPBA has provided 

ample information demonstrating why Step 2 limits and methodology are not achievable. In order to 

achieve meaningful reductions in emissions we have to motivate end-users to replace the older preNSPS heaters (the vast majority of heaters in use) in the marketplace with new ones. In order to do that, 

the new units need to be affordable. 

All wood burning appliances require time for design, testing, and production processes to ensure they 

are safe, cost-effective, and compliant products for the marketplace. It is not unusual to take up to 3 

years to develop a wood heating product from concept to production. Certification of compliance 60 

days after promulgation in the case of pellet heaters, single burn rate heaters, and forced-air furnaces is 

unrealistic. With the current backlogs in the Office of Enforcement and Compliance Assurance (OECA) 

(currently in excess of 4 months per model in our experience), the government's ability to produce a 

certificate for our appliances alone would create such a backlog it would decimate the industry. USSC 

would have 53 different products under review by OECA around the date of promulgation - even if 

doing so is financially and possible and on an achievable timeline- which is certainly not the case. OECA 

has certified less than 1,000 products in the past 25 years - an average of slightly less than 40 products 

2

See 79 Fed. Reg. at 6350 

4 
44 


27895.030

annually. Even if investment capital and time allotted for design, development and testing were not an 

issue, USSC products alone exceed the annual OECA average of certificates issued under the proposed 

NSPS. We can assume that other manufactures will have a similar certification needs. If OECA cannot 

perform better than it is operating today, we can safely assume that it cannot meet the needs of this 

industry up to and after promulgation. The impact of such a bottleneck on our industry is obvious. 

Finally, investment capital is important for operation. If any business does not have adequate cash flow, 

it will not survive. If products do not have time to sell out in the supply chains after promulgation, an 

undue burden will immediately be placed on retailers, distributors and ultimately the manufacturers. 

Reasonable time for retail sales is paramount to the financial health and viability of our industry. 

VI. Adjustable Burn Rate Wood Heaters 

USSC endorses HPBA's comments on adjustable burn rate wood heaters and the proposed test methods 

associated with them. We endorse and accept the proposed Step 1 limit of 4.5 g/hr. We believe this 

emission standard, along with including products that are currently exempted under the Subpart AAA, 

will achieve the EPA's goal of improving overall air quality on a national scale without damaging the 

industry to the point where the replacement of older non-compliant products in the industry will not 

occur. 

VII. Wood Pellet Heaters 

USSC also endorses HPBA's comments concerning wood pellet stoves and the proposed test methods 

associated with them. We endorse and accept the proposed Step 11imit of 4.5 g/hr and the use of ASTM 

E2779-10(Standard Method for Determining Particulate Matter Emissions from Pellet Heaters) in its 

entirety. Since wood pellet stoves were a previously unaffected appliance under the current NSPS, and 

since most manufacturers of wood pellet stoves will be impacted by the proposal in multiple product 

categories, and since the almost certain potential for "logjams" in the testing labs, we recommend the 

following transition relief for wood pellet stoves which would be concurrent with the previous NSPS: 

• Compliance extension of at least 1 year after promulgation of the proposed rule; and 

• Authorization for retail sell through of at least 2 years after the compliance date of the 

proposed rule. 

VIII. Forced-Air Furnaces 

USSC endorses the HPBA's comments regarding forced air furnaces. We would like to expand on several 

points made in HPBA's comments. 

EPA proposes to regulate forced-air furnaces under Subpart QQQQ (Standards of Performance for New 

Residential Hydronic Heaters and Forced Air Furnaces) along with hydronic heaters under the category 

of central heaters. The two technologies are vastly different. As defined in the proposed NSPS a 

residential forced-air furnace is "a fuel burning device designed to burn wood or wood pellet fuel that 

warms spaces other than the space where the furnace is located, by distribution of air heated by the 

furnace through ducts"' and a residential hydronic heater is "a fuel burning device designed to burn 

'see 79 Fed. Reg. at 6384 

5 
45 


27895.031

wood or wood pellet fuel for the purpose of heating building space and/or water through the 

distribution typically through pipes, of a fluid heated in the device, typically water or a water and 

antifreeze mixture."4 According to these definitions, forced-air furnaces utilize a heat distribution media 

of air while hydronic heaters use a heat distribution media of water. Water is roughly 1000 times more 

dense than air and has over 4 times the specific heat vs. air. In simple terms that means that water is a 

much better storage media for heat. Due to its greater heat storage capacity, water allows hydronic 

heaters to operate at their optimum burn rates or "sweet spot" to achieve relatively clean burns without 

overheating, even when the thermostat is not demanding heat. By comparison, forced-air furnaces have 

virtually no heat storage capabilities with their distribution media and are not able to consistently 

operate in their "sweet spot" due to many safety concerns and common use habits by the end users. We 

also would like to emphasize that there has been no EPA or state voluntary program for warm air 

furnaces as there has been for hydronic heaters. 

There are significant differences in size and weight of these two appliances. Hydronic heaters are 

typically designed to be installed outdoors, so the manufacturer is not constrained by size or weight 

limits to their product for modifications. On the other hand, forced-air furnaces are made to be installed 

indoors in a basement or utility room. Because of this, manufacturers are restricted to size and weight of 

the appliance for installation. With this premise, it is important to realize the manufacturer is restricted 

by size and weight for add-on technologies to improve emissions. This presents a significant design and 

engineering challenge. 

In it comments, HPBA makes a distinction between small and large furnaces with a differentiation point 

at 65,000 BTU/hr of ducted output, and acknowledges that there are several (approximately 4) furnaces 

that are currently compliant with B415.1-10 when tested through an accredited lab. All of these 

products would be classified as a smaller furnace by this definition. It is important to note that smaller 

furnaces are primarily designed for supplemental heating of homes, while larger furnaces are designed 

to be whole home heaters. There are no known large furnaces by definition that have been tested and 

certified to the limits of B415.1-10. 

To the best of our knowledge, all of the furnaces that are currently listed to B415.1-10 (the same 

standard and limits listed in the proposed NSPS) are manufactured in Canada, so they are immediately 

able to comply with subpart QQQQ from a design and testing standpoint. No major American forced-air 

furnace manufacturer currently produces a furnace that meets the requirements of B415.1-10, while 

Canadian manufacturers of forced-air furnaces have already made the investment into their products to 

meet step 1 emissions requirements of the proposed rule in order to sell into their markets. As dearly 

stated in the docket from public comment, through the economics of NAFTA, in its present form the 

proposed NSPS directly promotes Canadian based manufacturing at the expense of American 

manufacturers all of which are American small business that support American jobs and families. 

USSC is the largest forced air furnace manufacturer in the US. Supporting evidence to that claim will be 

submitted under CBI, if requested by EPA. We emphasize that we do not currently have a furnace that 

meets the requirements and limits of B415-1-10. The proposed NSPS states that "Given that the largest 

U.S. forced-air furnace manufacturer already has a catalytic model meeting 0.06 lb/MMBtu, we think 

the 6 years of lead time is sufficient time in which to conduct R&D to produce comparably lower 

emitting model lines." This statement is incorrect. USSC did not make it and no evidence of a cordwood 

burning forced-air furnace has been produced on a device currently meeting 0.06lb/MMBtu. 

4

See 79 Fed. Reg. at 6384 

6 
46 


27895.032

In light of the clear favoritism of Canadian based manufacturers and the lack of any voluntary program 

(which has lasted approximately 8 years for the other heater type under Subpart QQQQ) for this device, 

we request the following transition relief broken down between smaller and larger forced air furnaces. 

For smaller furnaces: 

• Compliance extension of at least 1 year after promulgation of the proposed NSPS; and 

• Permitted retail sell through at least 3 years after promulgation of the proposed NSPS. 

These aspects of the transition relief we request are consistent with phase 2 allowances under current 

subpart AAA. The previous NSPS for Wood Heaters was regulating previously unaffected facilities and 

provide 2 years to comply and two years following that compliance date to sell through product at retail. 

Since there are no large furnaces on the market today that are certified to 8415.1-10 and thus no BSER 

to establish limits on said furnaces we request the following in transition relief. 

For large furnaces: 

• Compliance extension of at least 3 year after promulgation of the proposed NSPS; and 

• Permitted retail sell through at least 5 years after promulgation of the proposed NSPS. 

USSC fully supports the HPBA's comments on grandfathering provisions for warm air furnaces. It is of 

the utmost importance that if a product is compliant with the proposed emissions requirements before 

the effective date of this proposed NSPS, and certified though an EPA accredited third party laboratory, 

it should be granted a certificate of compliance of no less than 5 years from the date of certification. 

It is very important to note that modifications to the existing non-affected facilities are required to 

comply with the proposed NSPS. If modifications are made to an existing safety listed appliance, 

verification that an appliance is safe for the end user through a manufacturer's life testing protocols and 

retesting to safety standard will be required. In short, modifications to the emissions reduction 

technology of an appliance require re-testing to safety standards for safety assurance. This requirement 

further exacerbates the burden on the manufacturer of bringing a product to market under the 

proposed time line. 

On p. 6344 of Volume 79 of the Federal Register (the proposed NSPS), the preamble includes in Table 5 

the Proposed Approach Subpart QQQQ PM Emissions Standards limits for Forced Air Furnaces for Step 1 

at 0.93 lb/MMBtu and Step 2 at 0.06 lb/MMBtu and Table 6 for the Alternate Approach for Forced Air 

Furnaces for Step 1 at 0.93 lb/MMBtu and Step 2 at 0.15 lb/MMBtu and Step 3 at 0.06 lb/MMBtu. But, 

when referencing the rule, section 60.5474 (4) (b) (3) states "2015 forced-air furnaces particulate matter 

emission limit: 0.93 lb/million Btu (0.40 g/megajoule) heat output and 7.5 g/hr (0.017 lb/hr) as 

determined by the test methods and procedures in 60.5476." 

These statements are contradictory and contrary to the information presented in the Preamble. We 

request the 7.5 g/hr requirement be struck from the document as this must be a typographical error, 

since both reporting numbers cannot be correlated. This is also not consistent with the reporting limit as 

stated in CSA 8415.1-10. The EPA as stated that CSA 8415.1-10 will be the proposed test method in this 

under Subpart QQQQ. 

IX. Single Burn Rate Heaters 

7 
47 


27895.033

Single burn rate heaters are defined in the proposed NSPS as a heater that does not have an adjustable 

damper. However the exemption for single burn rate heaters, often termed utility heaters, has been 

defined in the past as an appliance that cannot be dampened down below a burn rate of Skg/hr when 

tested in accordance with Method 28A. Because of that burn rate, it was exempt from the current 

subpart AAA requirements. These types of heaters typically do not have sophisticated emissions controls 

and are designed specifically to meet a heating need at a sensitive price point. These devices are the 

most affordable forms of wood heating in the marketplace, and as the EPA has noted represent a 

significant segment of the wood heating marketplace. 

Since HPBA is not providing extensive comment on single burn rate wood heaters, we would like to 

address some of the points on which the EPA had requested specific comment. Single burn rate wood 

heaters have been grouped into the room heater category under Subpart AAA. For room heaters, EPA is 

proposing that the effective date for compliance is upon promulgation of the rule and a six month sellthrough for retail. They requested specific comment on a 1 year compliance extension5

• 

We believe that a compliance extension of over one year is paramount for this type of heater, along 

with extra time for retail sell-through, for the following reasons: 

1. Until the rule making is final, a manufacturer does not know conclusively what test method to 

apply to a product. Since a Single Burn Rate appliance was classified as a non-affected facility, a 

manufacturer cannot realistically be expected to produce compliant products upon 

promulgation. 

2. As stated in the proposed NSPS, the Single Burn Rate appliances have previously been defined as 

a non-affected facility. Manufacturers of these appliances need time to design, test and produce 

products to the proposed NSPS which will be addressed later in this document. 

3. With the first NSPS, the EPA allowed two years for compliance for adjustable burn rate wood 

heaters and an additional 2 years for retail sell through. USSC is requesting this same time line 

for the category of appliances. The two years for compliance will allow for R & D testing and 

then time for compliance testing in a lab. The two years of sell-through following the compliance 

date will allow retailers to clear out their inventory. It is important to note that if the compliance 

deadline is May 2015, retailers will not be selling heating products until October at the earliest. 

The proposed sell-through will not allow retailers time to release their current product. 

We are in agreement with the EPA's proposal6 of using the appendix of ASTM E2780-10 in its entirety for 

compliance testing of this appliance category. 

In the Preamble, the EPA describes the number of single burn rate stoves sold each year7

• USSC does not 

dispute this estimate and we would like to note that we have the largest market share in this product 

category. This product type represents a major revenue stream for this company and, as previously 

noted, we want to work with EPA to achieve improved air quality through the reduction of wood 

burning emissions. We need to settle on a solution that will achieve real emissions reductions and not 

decimate a product category through an unreasonably short timeline. Give us adequate time to develop 

effective technology to incorporate into these devices that can meet emission requirements and still be 

safe and cost effective to the end-user. 

'see 79 Fed. Reg. at 6340 6

See 79 Fed. Reg. at 6342 7 See 79 Fed. Reg. at 6357 

8 
48 


27895.034

We do not agree with the comments made on this page of the preamble that "some models would 

require modifications ...... " All models will require modifications to be compliant. These models do not 

have any technology built into the appliance for emissions reduction. Therefore, considerable time will 

be required to research, develop and incorporate new technology into each model, and then send the 

appliance for testing at a lab. To expect a manufacturer to be compliant with this category on the day of 

promulgation is unreasonable and most likely impossible when you factor in the time at the lab and the 

amount of time the OECA is taking to review each test report. For the above timing requirements, USSC 

again requests from EPA that the timing of compliance be extended from the proposed date. We 

request the timing of the phase in for single burn rate heaters follow the timing of Phase 2 of the 

original NSPS for wood heaters: 

• Compliance extension of at least 2 years after promulgation ofthe proposed NSPS; and 

• Permitted retail sell through at least 4 years after promulgation of the proposed NSPS. 

The EPA makes reference• to the additional cost to manufacture a lower emitting single burn rate 

heater. This comment does not clearly define how the $100 dollars was determined. If this comment is 

referring to the added material costs of manufacturing, then it is fairly accurate. It is, however, 

important to note that the cost of producing a lower emitting single burn rate heater far exceeds the 

cost of the materials. We estimate the additional costs associated with bringing single burn rate heaters 

into compliance would be $2SO of manufacturing cost. Please note this cost increase is at the 

manufacturing cost level, not the retail price level- which would be more. 

The EPA requested comments on the Alternative Step 1 approach9

• As previously discussed, we are very 

concerned with the amount of time given to bringing this appliance category to the proposed 

compliance standard. We strongly disagree with the Alternative Approach as this would place additional 

burden on compliance. We have already explained that the proposed Approach is too aggressive for ALL 

parties involved. The Alternative Approach is even more aggressive and is completely unacceptable. We 

request that EPA adhere to the proposed approach and eliminate Step 2 until the next review of the 

NSPS. There is no BOT to cordwood fuel being used for emissions testing, so, as discussed in the Wood 

Heater Module presented by HPBA, Step 2 should be reviewed after data is submitted with the next 

NSPS review. 

As noted this category of appliances is also referred to as "utility heaters". These products provide a 

source of heat for those that would otherwise be unable to afford a heater in their home. As a 

manufacturer, we are deeply concerned with the additional cost burden this will place on the consumer 

by not having a "utility heater" category. We understand the importance of improving the air quality. 

We also understand the importance of providing a "utility" style wood heaterfor the consumer. 

X. Other Pertinent Observations 

In the Preamble you request comments10 on the requirement of the "direct distribution manufacturers 

and retailers providing moisture meters to the consumer at the time of sale. It also states that "some 

manufacturers include a moisture meter for their operators". 

'see 79 fed. Reg. at 6351 

'see 79 fed. Reg. at 6363 10See 79 Fed. Reg. at 6364 

9 
49 


27895.035

First of all, to propose that a moisture meter be required to be included with the sale of a wood heater 

is unreasonable. The retail consumer will not use this piece of equipment. As anyone knows who has 

ever used one, it is very easy to break a pin on this type of gauge. This poses a risk of harm to the user, 

plus once broken, it is very unlikely the retail consumer would fix or replace it. 

Second, the comment that "some manufacturers include a moisture meter for their operators" is 

unfounded. We have surveyed the top hearth manufacturers and HPBA and we could not document one 

manufacturer supplying a moisture meter with their product. The last comment does not make any 

sense. Who is the operator? Operator of what? 

It is important to point out, split cordwood seasons very well one or two years after being cut. The 

manufacturer's instructions (as the Preamble points out) clearly guide the consumer on the proper 

seasoning of fuel for their product for proper operation. 

The requirement to have retailers include a moisture meter is an undue cost burden and would not 

improve the maintenance of the consumer's fuel or performance. 

XI. Conclusion 

Meaningful and enduring emission reduction that advances the state of the art, while preserving the 

time tested benefits of products consumers rely on to provide for their basic needs, can only be 

achieved through mutually beneficial partnerships between government and industry. The new and 

revised New Source Performance Standards for wood burning appliances used by consumers contains 

an admirable, meaningful and cost-effective step forward. Unfortunately, it also proposes one or 

potentially two additional steps too far. If taken now, these extra steps will lead to the destruction of a 

successful American industry that has been forged over several generations and will not benefit the 

American consumer or achieve meaningful reductions of emissions from wood burning appliances in the 

United States. Please don't let that happen. 

Respectfully submitted: 

United States Stove Company 

227 Industrial Park 

South Pittsburg, TN 37380 

800-750-2723 

paul@usstove.com 

10 
50 

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 

51 

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:] 

52 


27895.036

Emily Hammond 

Glen Earl Weston Research Professor of Law 

George Washington University Law School 

Emily Hammond is a nationally recognized expert in energy law, 

environmental law. and administrative law. A former environmental 

engineer, she brings technical fluency to cutting-edge issues at the 

intersection oflaw, science, and policy. Professor Hammond's scholarship 

focuses on regulatory process, the responses of various legal institutions to 

scientific uncertainty, electricity markets, climate change, and the law of 

water quality. Her articles have appeared in numerous top-ranked joumals, including the 

Columbia Law Review, the Duke Law Journal, the Michigan Law Review, and the Vanderbilt 

Law Review. She is a co-author of one of the nation· s leading energy law texts, Energy, 

Economics and the Environment. and the environmental law text Environmental Protection: Law 

and Policy, in addition to a variety of book chapters and shorter works. 

An elected member of the American Law Institute, Professor Hammond is also past chair of the 

American Association of Law Schools' Administrative Law Section and a member scholar of the 

Center for Progressive Reform. She has consulted on various energy, environmental, and 

administrative law matters, authored an1icus briefs, and testified before Congress on these issues. 

Professor Hammond actively collaborates with other researchers from a variety of disciplines 

within her field, and she is a past Distinguished Young Environmental Scholar recipient at the 

Stegner Center, University of Utah. 

Prior to joining the GW law faculty, Professor Hammond served on the faculties at Wake Forest 

University and the University of Oklahoma College of Law. where she served as Associate Dean 

for Academic Affairs and Associate Director of the Law Center, and won numerous teaching 

awards. She has visited at the University of Texas, Florida State University. and the University 

of Georgia. Before entering academia, Professor Hammond practiced with law with Bondurant, 

Mixson & Elmore. LLP in Atlanta, Georgia, and clerked for Judge Richard W. Story of the U.S. 

District Court for the Northern District of Georgia. 
53 


27895.037

TESTIMONY OF EMILY HAMMOND 

GLEN EARL WESTON RESEARCH PROFESSOR OF LAW 

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY 

LEGISLATIVE HEARING ON S. 1857, S. 203, S. 839, AND 8.1934 

November 14,2017 

Thank you, Chainnan Capito, Ranking Member Whitehouse, and distinguished Members 

of the Subcommittee, for the opportunity to testify today about the Clean Air Act (CAA) and the 

following bills: S. 1857;1 S. 203;2 S. 839;3 and S. 1934.4 

I am the Glen Earl Westo.n Research Professor of Law at the George Washington 

University Law School, a member-scholar of the not-for-profit regulatory think-tank, the Center 

for Progressive Refonn, and past-Chair of the Administrative Law Section of the Association of 

American Law Schools. I am testifying today, however, on the basis of my expertise and not as a 

partisan or representative of any organization. As a professor and scholar of environmental law, 

energy law, and administrative law, I specialize in the role of these laws in society. My work is 

published both internationally and in this country's top scholarly journals, and I am a co-author 

of textbooks on both environmental law and energy law. Early in my career, I practiced 

environmental engineering; that experience and training inform my assessment of the role of 

environmental law in bettering our society. 

In my testimony today, I will begin by discussing the CAA, including the many health, 

environmental, and economic benefits it provides. Next, I will put the bills you are considering 

1 S. 1857, 115th Cong. (2017) -A bill 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. 2 RPM Act of2017, S. 203, 115'h Cong. (2017). 3 Blocking Regulatory Interference from Closing Kilns Act of2017, S. 839 (ll5th Cong. 2017). 4 Alaska Remote Generator Reliability and Protection Act, S. 1984, IJ5'hCong. (2017). 
54 


27895.038

today in context by sounding an alarm: the very air we breathe, and the climate we depend on, 

are under assault. In the executive branch, the Environmental Protection Agency (EPA) is 

abdicating its responsibilities under the CAA. Several features of the bills under consideration 

today would further undermine our clean air protections-increasing premature deaths, imposing 

significant costs on our economy, and creating even more regulatory uncertainty for businesses. 

I. The Benefits of Clean-Air Protections 

In its wisdom, this institution passed the CAA as a foundational means of protecting 

human health and the environment while ensuring a thriving economy. As a result of these 

protections, between 1970 and 2011, air pollution dropped 68% while Gross Domestic Product 

(GDP) increased 212%.5 Private sector jobs increased by 88% during that same time period. Our 

population grew, our industries innovated, and our infrastructure expanded. There is still much to 

be done-a point to which I will return in a moment. But over and over again, studies 

demonstrate that cleaner air is an economic good.6 

It is helpful to make these numbers concrete by examining air pollution in more detail. 

Air pollutants have considerable adverse health and environmental effects. Ozone, for instance, 

is linked to respiratory illnesses, heart attacks, premature death, and negative effects on forests 

5 ENVTL. PROTECTION AGENCY, THE CLEAN AIRACTANDTHEECONOMY, at 

https://www.epa.gov/clean-air-act-overview/clean-air-act-and-economy# _ ednref6 (last visited 

Nov. 11, 2017). 6 See generally Sidney A. Shapiro et al., Saving Lives, Preserving the Environment, Growing the 

Economy: The Truth A bout Regulation, CTR. FOR PROGRESSIVE REFORM WHITE PAPER# 1109 

(July 2011), at http://www.progressivereform.org/articles/RegBenefits_ll 09.pdf; see also 

Stephen M. Meyer, Environmentalism and Economic Prosperity: Testing the Environmental 

Impact Hypothesis, MIT PROJECT ON ENVIRONMENTAL POLITICS AND POLICY iv (Oct. 5, 1992) 

(measuring economic performance of all fifty states as compared to state environmental rank, 

and concluding that "states with stronger environmental policies did not experience inferior rates 

of economic growth."). 

2 
55 


27895.039

and crop yields7 Particulate matter likewise causes premature death, cardiovascular and 

respiratory harm, and reproductive and developmental harm; it furthermore is a cause of haze in 

many of our national parks.8 Air toxics, like mercury and arsenic, are even worse:9 several are 

known or probable human carcinogens, and they cause chronic damage to the central nervous 

system, kidneys, and lungs. 10 Indeed, EPA has estimated that because of air toxics, "all 285 

million people in the U.S. have an increased cancer risk of greater than 10 in one million."11 

Given these and many other harms, one can see how clean-air protections save lives. 

Regulations promulgated under the CAA saved over 164,000 lives in 2010 alone, and are 

projected to save 237,000 lives in 2020. 12 By contrast, S. 1857 would roll back protections and 

impose on our society 300- 800 premature deaths per year. 13 Moreover, when people are sick 

they are not working; when children are sick, they are not attending school. Those same CAA 

rules saved 13 million days of lost work, and 3.2 million days of missed school, in 2010. By 

7 See generally Final Rule, National Ambient Air Quality Standards for Ozone, 80 Fed. Reg. 

65,292 (Oct. 26, 2015). 8 Final Rule, National Ambient Air Quality Standards for Particulate Matter, 78 Fed. Reg. 3086, 

3110 (Jan. 15, 2013). Along with ozone and particulate matter, EPA regulates lead, carbon 

monoxide, sulfur dioxide, and nitrogen dioxide as criteria pollutants under the National Ambient 

Air Quality Standards Program. See ROBERT L. GLICKSMAN ET AL., ENVIRONMENTAL 

PROTECTION: LAW AND POLICY 421-26 (7th ed. 2015) (providing further summaries). 9 See generally Supplemental Finding That It Is Appropriate and Necessary to Regulate 

Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, 81 

Fed. Reg. 24,420 (Apr. 25, 2016) (reaffirming appropriate and necessary finding on remand from 

Michigan v. EPA, 135 S. Ct. 2699 (2015)). 10 E.g., National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired 

Electric Utility Steam Generating Units, 76 Fed. Reg. 24,976,25,003-05 (May 3, 2011). 11 ENVTL. PROTECTION AGENCY, SUMMARY OF RESULTS FOR THE 2011 NA T!ONAL-SCALE 

ASSESSMENT, at 4 (2015). 12 ENVTL. PROTECTION AGENCY, THE BENEFITS AND COSTS OF THE CLEAN AIR ACT FROM 1990 

TO 2020, at7-9 (Mar. 2011). 13 See Standards of Performance for New Residential Wood Heaters, New Residential Hydronic 

Heaters, and Forced-Air Furnaces, 80 Fed. Reg. 13,672, 13,674 (Mar. 16, 2015) (reporting 

emission standards will avoid 300-800 premature deaths per year). 

3 
56 


27895.040

2020, these numbers will increase to 17 million and 5.4 million days, respectively. 14 Even this 

brief snapshot helps show the economic benefit of clean-air protections, but there is more: the 

cumulative benefit to society by 2050 of regulating air toxics is over $104 billion. 15 Overall, the 

benefits of the 1990 CAA Amendments and implementing regulations exceed costs by a factor of 

more than 30 to 1.16 And the Office of Management and Budget reports that the monetized 

benefits of CAA regulations accounted for 80% of the benefits of all regulations analyzed for its 

2015 report to Congress. 17 

Despite these many successes, there is still much to do. We must ensure that we continue 

to strengthen protections against criteria pollutants and air toxics, and further support EPA and 

the states in their enforcement roles. The bills under consideration today roll back protections 

developed after rigorous expert analysis, public and industrial input, and cost justification-all in 

the name of catering to special interests at the expense of our most vulnerable populations. 

Moreover, as discussed below, we have lost federal leadership on the very most urgent issue of 

our time: climate change. 

II. The Broader Context: An Assault on Our Future 

The Trump Administration is failing to carry out Congress's mandate to ensure clean air. 

For example, it is considering revoking protections from air toxics,18 and it has illegally 

attempted to delay the compliance deadlines for environmental protections that are already in 

14 EPA, supra note 12, at 5-25 (Tbl. 5-6). 15 Amanda Giang & Noelle E. Selin, Benefits of mercury controls for the United States, 113 

PNAS 286 (Jan. 12, 2016). 16 EPA, supra note 12, at 7-1. 17 OMB, supra note 4, at 12. 18 Murray Energy Corporation v. EPA, eta!., No.16-1127 (D.C. Cir. Apr. 27, 2017) (suspending 

litigation challenging the Mercury and Air Toxics Standards, given EPA's stated intent to review 

and revise the rule). 

4 
57 


27895.041

effect. 19 Alanuing as these efforts are, even worse is the Administration's utter failure to exercise 

leadership on climate change. 

Under the CAA, EPA must regulate air pollutants that it finds endanger public health and 

welfare.20 The term "air pollutants" includes greenhouse gases, and EPA has made a detailed, 

science-backed finding that greenhouse gases do endanger public health and welfare, and 

"science overwhelmingly shows greenhouse gas concentrations [are] at unprecedented levels due 

to human activity."21 (Note that the recent Climate Science Special Report concurs.22) Given its 

mandate to regulate in the face of such a finding, EPA has undertaken several efforts to reduce 

the United States' contribution to this global problem.23 These efforts use the social cost of 

carbon (SCC) in their cost-benefit analyses. The SCC was developed by an interagency working 

group, subjected to peer review,24 and upheld in federal court.25 Because some of the harshest 

impacts will occur in the future, the discount rate is an important component of any carbon-based 

cost-benefit calculation, and federal agencies were directed to evaluate several rates in 

19 E.g., Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. Jul. 3, 2017) (holding EPA lacked 

authority to stay rule involving fugitive methane and other greenhouse gas emissions from the oil 

and gas sector). For a detailed list of many such delays, see Rena Steinzor & Elise Desiderio, The 

Trump Administration's Rulemaking Delays, CTR. FOR PROGRESSIVE REFORM (Jul. 2017). 20 42 U.S.C. § 7521(a)(l); Massachusetts v. EPA, 549 U.S. 1438 (2007). 21 Envtl. Protection Agency, Press Release, Greenhouse Gases Threaten Public Health and the 

Environment/Science Overwhelmingly Shows Greenhouse Gas Concentrations at Unprecedented 

Levels Due to Human Activity (Dec. 7, 2009); Endangerment Finding and Cause or Contribute 

Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 

(Dec. 15, 2009). 22 Weubbles, D.J. eta!., Climate Science Special Report: Fourth National Climate Assessment, 

U.S. Global Change Research Program (Nov. 2017). 23 See, e.g., Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric 

Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) [hereinafter the "Clean Power 

Plan"]; Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: 

Electric Generating Units, 79 Fed. Reg. 1430 (Oct. 23, 2015). 24 See Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis Under 

Executive Order 12,866 (May 2013, revised July 2015). 25 Zero Zone, Inc. v. Dep't of Energy, 832 F.3d 654, 677-78 (7th Cir. 2016). 

5 
58 


27895.042

calculating present value. Notably, some studies suggest that the SCC ought to be much higher 

than reported by the interagency working group.26 Here is a snapshot of the SCC, which EPA 

used in its cost-benefit analysis of the Clean Power Plan-a foundational rule aimed at 

greenhouse gas emissions from power plants: 

Table 4-2. Social Cost of COz, 2015-2050 {in 2011$ per sbort ton)* 

Discount Rate and Statistic 

Year 5%Avcrage 3% Average 2.5%Avcregc 3% (95th percentile) 

2015 Sll S3S $54 $100 

2020 512 $.40 $60 Sl20 

2025 Sl3 544 S65 Sl30 

2030 SIS S48 S70 $150 

2035 SJ7 553 $75 S160 

2040 S20 S58 S8l S!80 

2045 S22 $62 $86 S190 

2050 S25 $66 $91 5200 

• These SC·CO, values""' stated in S/shon ton and rounded to two significant figures. The SC..CO, values have 

been converted from S!mctric ton to S/sh.ort ton using tbe conversion factor 0.90718474 metric tons in a short ton 

for consistency with tbis rulemaking. TW. CJilculation does not change the underlying methodology nor does it 

change the meaning of the SC·C02 estimates. For both metric and short tons denominated SC .co, estimates, the 

estimates vary depending on the ye-ar of CO:: cmlssion..~ and arc defined in real terms~ i.e.) adjusted for inflation 

using the GDP implicit price deflator. 

Source: EPA, Regulatory Impact Analysis for the Clean Power Plan Final Rule, at 4-8, Tbl. 4-2 (Oct. 23, 2015). 

Over and over again, EPA has concluded that the benefits of protecting against 

greenhouse gas emissions substantially outweigh the costs. For the Clean Power Plan, after 

subtracting compliance costs, the net climate and health benefits were estimated from $3.9 

billion to $6.7 billion in 2020, with substantial increases in later yearsY Other climate rules are 

26 See, e.g., Frances C. Moore & Delavane B. Diaz, Temperature impacts on economic growth 

warrant stringent mitigation policy, 5 NATURE CLIMATE CHANGE 127 (Jan. 2015) (arguing for 

sec an order of magnitude higher than used by federal agencies). 27 2011 dollars, using 3% discount rate and mass-based approach. For further details, see Final 

Rule, Carbon Emission Guidelines for Existing Stationary Sources: Electric Utility Generating 

Units, 80 Fed. Reg. 64,661, 64,679 (Oct 23, 2015). 

6 
59 


27895.043

similarly overwhelmingly cost-justified, and as mentioned above, a federal court has upheld use 

of the SCC.28 

Notwithstanding the scientific consensus and the unthinkable costs of climate change, the 

Trump Administration has taken the destructive, absurd approach of pretending that it does not 

exist. This utter abnegation of responsibility demands this institution's oversight. A step in the 

right direction-and within this subcommittee's jurisdiction-would be to call EPA 

Administrator Scott Pruitt to task. Notably, Administrator Pruitt has not attempted to revoke the 

endangerment finding; doing so would be arbitrary and capricious in light of the overwhelming 

scientific record. Yet despite the CAA's clear direction to regulate such emissions following an 

endangennent finding, EPA is now attempting to do exactly the opposite. Moreover, the 

proposed rule to rescind the Clean Power Plan is based on accounting sleights-of-hand that make 

a mockery of the real dangers faced by society due to climate change. For example, in estimating 

costs and benefits, the agency could not escape the plain fact that regulating greenhouse gas 

emissions is cost-justified.29 So EPA tinkered with the numbers--changing accepted discount 

rates and how the harms of climate change are counted-to force the result it wanted?0 

Several of the bills before you today would add to these harms. S. 1857 would increase 

black carbon and greenhouse gas emissions as well as premature deaths due to particulate matter 

exposure;31 S. 839 would increase emissions of hazardous air pollutants like mercury and 

28Zero Zone, 832 F.3d at 67-78. 29 See Clean Power Plan Rescission, supra note Error! Bookmark not defined., at 48,043-47 

(summarizing regulatory impact analysis). 3

° For further analysis, see Richard L. Revesz & Jack Lienke, The EPA's Smoke and Mirrors on 

Climate, N.Y. TIMES, Oct. 9, 2017. 31 See Standards of Performance for New Residential Wood Heaters, New residential Hydronic 

Heaters, and Forced-Air Furnaces, 80 Fed. Reg. 13,672, 13,674 (Mar. 16, 2015) (documenting 

benefits of rule including reduced climate effects). 

7 
60 


27895.044

dioxins;32 and S. 203-though innocuous on its face-would increase dangerous motor vehicle 

emissions by burdening EPA's enforcement obligation beyond its capabilities.33 

III. Conclusions 

Environmental laws were enacted to ameliorate a classic market failure: polluters have 

every incentive to impose costs that they have created on human health and the environment 

rather than taking responsibility for those impacts themselves. Years of experience with the CAA 

and EPA's implementing regulations demonstrate that clean air is an economic good. But cleanair protections and our global climate are at risk, and I urge you to consider this bigger picture as 

you take up the bills under consideration today. There is still a great deal more to do, and we 

cannot afford complacency. 

Thank you again for the opportunity to testifY today. I look forward to your questions. 

32 See NESHAP for Brick and Structural Clay Products Manufacturing; NESHAP for Clay 

Ceramics Manufacturing, 80 Fed. Reg. 65,470,65,473 (Oct. 26, 2015) (describing health effects 

of pollutants emitted by this industry). 33 EPA already has made clear that it does not enforce section 203(b )(3) of the CAA against 

motor vehicles used exclusively for racing. Ryan Beene, EPA drops proposal feared to ban 

street-to-race car conversions, AUTOMOTIVE NEWS, Apr. 16, 2016. 

8 
61 

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. 

62 

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:] 

63 


27895.045

John D. Walke 

Clean Air Director 

Natural Resources Defense Council 

John D. Walke is a senior attorney and Director of Clean Air Programs 

with the Natural Resources Defense Council, where he has general 

responsibility for NRDC's clean air advocacy. His work focuses on the 

Clean Air Act's new source review (NSR) preconstruction review 

programs and a variety of State Implementation Plan measures under 

Title I of the Act; air toxics programs under Title III of the Act; Title 

IV's acid rain program; and the Title V operating permits program. 

Prior to joining NRDC in 2000, John worked for the United States 

Environmental Protection Agency, in the air and radiation law office of the Otnce of General 

Counsel, from 1997-2000. At EPA, John was the primary attorney responsible for the operating 

permits program under Title V of the Clean Air Act. He also worked extensively on issues 

relating to NSR programs, air toxics, monitoring, and enforcement under the Clean Air Act. 

Before working at EPA, John was an associate in the Washington, D.C. office of Beveridge & 

Diamond, P.C. from 1993-1997, where his practice concentrated on the Clean Air Act, the Clean 

Water Act, and the representation of individuals and corporations in criminal and administrative 

proceedings. John has a bachelor's degree in English from Duke University and a Jaw degree 

from Harvard Law School. 
64 


27895.046

TESTIMONY OF JOHN D. WALKE 

CLEAN AIR DIRECTOR 

NATURAL RESOURCES DEFENSE COUNCIL 

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

BEFORE THE SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY. 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

U.S. SENATE 

November 14,2017 

Thank you, Chairman Capito and Ranking Member Whitehouse for the opportunity to 

testify today. My name is John Walke, and I am clean air director and senior attorney for the 

Natural Resources Defense Council (NRDC). NRDC is a nonprofit organization of scientists, 

lawyers, and environmental specialists dedicated to protecting public health and the 

environment. Founded in 1970, NRDC has more than 1.3 million members and online activists 

nationwide, served from offices in New York, Washington, Los Angeles, San Francisco. 

Chicago. and Beijing. 

I have worked at NRDC since 2000. Before that I was a Clean Air Act attorney in 

the Office oi'Gcneral Counsel for the U.S. Environmental Protection Agency (EPA). Prior to that 

I was an attorney in private practice where I represented corporations, industry trade associations 

and individuals. Having worked on air pollution issues for the entirety of my career. I believe 

each of these bills would increase air pollution compared to today's law, some of them much 

more substantially and dangerously than others. I will address each of these bills and their 

potential to harm air quality and Americans· health in turn. 
65 


27895.047

S.203- The "Recognizing the Protection of Motors ports Act of 2017" 

Introduction 

The most troubling bill before us is one that should not be particularly controversial. The 

RPM Act. S. 203, appears to be a well-intentioned effort to clarify that vehicles used only for 

organized motorized racing events-whether they are built for racing or modified from on-road 

vehicles-do not have to meet the pollution control requirements that apply to on-road vehicles. 

Unfortunately, the current language of the RPM Act opens a hugely damaging loophole in the 

Clean Air Act. I believe the resulting increase in air pollution will dwarf the harmful air pollution 

and health impacts of the recent VW cheating scandal. 

S. 203 creates an "exclusion'' from the Clean Air Act's anti-tampering provisions barring 

defeat devices for emissions control systems. The exclusion is for actions concerning motor 

vehicles or engine design elements or devices under section 203(a) of the Clean Air Act, 42 

U.S.C. §7522(a)--and here is the crucial, problematic language-"ifthe action is for the purpose 

of modifying a motor vehicle into a vehicle to be used solely for competition." Clean Air Act 

section 203(a) makes it unlawful to remove, "bypass, defeat, or render inoperative" any part of a 

motor vehicle's emissions control system. The bill attempts to accomplish its goals further by 

amending section 216(2) of the Act to exclude ''a vehicle used solely for competition" from the 

definition of the term "motor vehicle."' Even though this amendment may sound minor or 

technical in nature, were S. 203 to become law, it would have an extremely negative impact on 

air quality nationwide that would far surpass the Volkswagen "dieselgate"' scandal. 

A handful of companies have made and marketed for general use after-market "defeat 

devices,'' which effectively turn off vehicle emissions controls. Up to now, the Department of 

Justice has been able to enforce against unscrupulous companies that have sold tens of thousands 

2 
66 


27895.048

of these devices for vehicles rarely used for racing, even when companies knew or should have 

known the defeat devices would be used on the nation's road and highways. In one consent 

agreement in 2015, EPA estimated that the devices sold allowed an additional 71,000 tons of 

smog-forming NOx pollution. That's equivalent to all motor vehicles emissions in the state of 

Wyoming/or ajitll year, including on-road vehicles (cars, trucks, buses, semis, motorcycles etc.) 

and non-road vehicles (tractors, forklifts, utility and recreational vehicles, other construction, 

farm and garden equipment etc.). 1 It is comparable to the 75,000 tons of NOx emissions that 

EPA's most recent power plant rule reduced from coal-burning power plants in 22 eastern 

states.2 In other words, these are enormous amounts of smog-forming pollutants, and this was 

just from a single defeat device legal settlement. 

The current bill language in S. 203 could make it almost impossible for EPA and the 

Department of Justice to stop the sale of heretofore illegal defeat devices, as long as a company 

claims that they intend the device to be used for racing. I want to emphasize that this is a matter 

of legislative drafting. It is not difficult to exempt racing-only DIY modifications from pollution 

control requirements. But the bill before you goes far beyond that, threatening serious harm to 

public health. I urge the Committee to fix this fatal flaw before moving forward. 

It is no secret that air pollution from motor vehicles greatly impacts air quality across the 

United States. Motor vehicles emit nitrogen oxides (NOx) emissions and volatile organic 

1 U.S. EPA. National Emissions Inventory 2014, v.1 (71.621 tons ofNOx emissions from mobile 

sources in Wyoming in 2014), available at https://www3.epa.gov/cgibin/broker? service=data& debug=O& program=dataprog.state l.sas&pol=NOX&stfips=56. 2 U.S. EPA, Regulatory Impact Analysis of the Cross-State Air Pollution Rule (CSAPR) Update 

for the 2008 National Ambient Air Quality Standards for Ground-Level Ozone, at ES-8. 

available at https:/ /www3.epa.gov/ttnecas 1/docs/ria/transport_ria _ final-csapr-updatc _ 2016-

09.pdf 

3 
67 


27895.049

compounds (VOCs) that combine to form smog, as well as deadly fine particle pollution. 

Transportation produces more than half of the NOx emissions, almost a third of the VOCs, and 

over one-fifth of the particulate matter air pollution in the United States. Together, these air 

pollutants aggravate asthma, cause bronchitis, lung disease, heart attacks, strokes, and even 

premature death. Recently updated air pollution standards for motor vehicles will, by 2030, 

prevent: 

• up to 2,000 premature deaths each year; 

• 2,200 hospital admissions and asthma-related emergency room visits annually; 

• 19,000 asthma exacerbations each year; 

• 30,000 upper and lower respiratory symptoms in children each year; and 

• 1.4 million lost school days, work days and minor-restricted activities annually.3 

These standards will continue to reduce on-road emissions of some of the most common and 

pervasive air pollution nationwide, including NOx, VOCs, sulfur dioxide (S02), carbon 

monoxide (CO) and known carcinogens, such as benzene and formaldehyde. 4 

Title II of the Clean Air Act regulates mobile sources of air pollution, and requires that, 

for the sale of a new motor vehicle, the automaker must supply a "certificate of compliance., to 

show compliance with federal emissions standards like those described above. Section 203 of the 

Act makes it unlawful to remove, "bypass, defeat, or render inoperative'' any part of a motor 

vehicle's emissions control system. 42 U.S.C. §7522(a)(3). S. 203 would exempt actions 

enabling modifications to a motor vehicle whose ''purpose'' is for the vehicle "to be used solely 

for competition'' lfthat asserted manufacturer or installer purpose is present, emissions control 

3 U.S. EPA, ''U.S. EPA sets Tier 3 Motor Vehicle and Fuel Standards," available at 

https://nepis.epa.gov/Exe/ZyPDF .cgi/P 1 OOHVZV .PDF?Dockey=P I OOHVZV.PDF 

4 Jd. 

4 
68 


27895.050

"defeat devices" lawfully may be sold, installed and distributed under the bill for vehicles that 

are used on-road, even routinely, and that may or may not also be used for competitions. Such 

defeat devices shut off a vehicle's emission control system. and allow it to spew pollution into 

the air unrestrained. 

In exempting a certain subset of defeat device manufacture, installation and use from the 

anti-tampering provisions of the Clean Air Act, S. 203 raises a host of problems with adverse air 

quality and health consequences. Though the aim of this bill may be to address the concerns of 

the motor vehicle racing community that uses vehicles for competitive racing exclusively, the 

bill creates a significant loophole for the manufacture and installation of defeat devices that will 

be used on highways and roads, rather than just competitive racing. 

In testimony concerning S. 203's counterpart bill in the House, H.R. 4715, the 

Congressional Research Service described the longstanding Clean Air Act approach, where the: 

distinction between a vehicle's capabilities and its intended use is key to EPA's position. 

Going back as far as at least 1974, EPA has maintained that it would make 

determinations on exclusions from the motor vehicle definition based on vehicle design, 

not intended use. Since that time, EPA has employed that test for a variety ofuscs, 

including off-road vehicles, kit cars, vocational vehicles, and imported racing cars.5 

It is exactly this "design versus intended use" issue that speaks to the most harmful impacts of 

this proposed legislation. S. 203 appears to be a well-intentioned effort to clarify that vehicles 

actually used only for racing-whether they are built for racing or modified from on-road 

vehicles-need not meet the pollution control requirements that apply to on-road vehicles. 

Unfortunately, the current language of the bill opens a hugely damaging loophole in the Clean 

5 Congressional Research Service, Testimony for Hearing on '"Racing to Regulate: EPA's Latest 

Overreach on Amateur Drivers" available a! 

https://science .house.gov /sites/republ icans.sc ience. house .gov /files/ documents/H HR G-1 14-

SY21-WState-B Yacobucci-20 160315 .pdf (emphasis added). 

5 
69 


27895.051

Air Act, and the resulting increase in air pollution will dwarf the impacts of the VW cheating 

scandal. 

As the CRS notes, EPA has experimented with attempting to regulate certain types of 

vehicles based on their uses in the past: 

IIJ[n November 2002 EPA established emissions standards for recreational nonroad 

vehicles and engines--including motorcycles, all-terrain vehicles (ATVs), and 

snowmobiles.[] Within those rules, EPA provided specific procedures and guidance for 

how new nonroad motorcycles, or "dirt bikes," can be converted from recreational use to 

competition-only. Specifically, only nonroad bikes may be converted.[] Before doing so, 

the owner must destroy the original emissions compliance label attached to the dirt bike, 

and the owner may not then use the bike for recreation. If the owner later sells the dirt 

bike, he or she must inform the purchaser that it has been modified and may only be used 

for competition. This process is, to our understanding, based solely on owner compliance, 

and EPA does not maintain any sort of database of these conversions.6 

In essence, for di1i bikes, the Agency has no idea whether or not the requirements that would 

ensure compliance with this regulatory approach are being met, or what percentage of owners are 

complying. With no enforcement at all, compliance is unknown. Further, the Agency has 

explored temporary exclusions for certain types of racing vehicles, where the CRS also notes that 

the: 

EPA and the National Highway Traffic Safety Administration (NHTSA). part of the 

Department of Transportation, also provide temporary exemptions for cars and trucks 

imported for racing purposes. In those cases, importers must follow a more detailed 

process to request an exemption from EPA and NHTSA. These exemptions are granted 

on a case-by-case basis. Importers must supply to EPA, among other things, the Vehicle 

Identification Number. or YIN, a list of race-specific characteristics (such as roll 

bars/cages and racing harnesses), a list of characteristics that preclude the vehicle's safe 

use on roads (for example, lack of a reverse gear or headlights), and photos of the 

vehicle. In guidance available on its website, EPA specifically states that "not all vehicles 

used in races are excluded from emissions compliance. Determinations arc based on the 

capability of the vehicle, not its intended use7 

"!d., at 2. 7 Jd., at 2-3. 

6 
70 


27895.052

Here, these vehicles' characteristics make it more obvious they are for racing only, and not being 

imported for on-road use, Moreover, a case-by-case evaluation by the agency would suggest that 

there is sufficient oversight to prevent rampant abuse, 

S203- Creating New Problems While Failing to Solve Others 

The Clean Air Act today defines "non-road engine" and "non-road vehicle" to exclude 

vehicles or their engines that arc "used solely for competition," such as motor sport racing 

events, 42 U,S,C, § 7550(10) & (II).As the Congressional Research Service noted in testimony 

at a hearing for the counterpart House bill to S.203, however,8 "fg]oing back as far as at least 

1974, EPA has maintained that it would make determinations on exclusions from the motor 

vehicle definition based on vehicle design, not intended use." Neither CRS nor we have 

identified any previous Department of Justice enforcement cases against defeat device 

manufacturers where the government was compelled to disprove or overcome manufacturer 

claims that the intent or purpose of the sale was for use solely for competition. Indeed, "CRS 

could identify no instances where enforcement actions were taken against parts suppliers who 

were operating solely in the racing parts market."9 

Consider the 2007 case by the Bush administration against a company for "selling 

devices that allow cars to release excess levels of pollution into the environment, in violation of 

the Clean Air Act." 10 The company sold 44,000 defeat devices through retailers and on its Web 

site, with increased air pollution caused by these defeat devices "equivalent to the emissions 

produced by a half-million cars with fully operational emission control systems over their 

8

Id.. at 3. 

9 ld. 

10 U.S. Department of Justice, Federal Settlement Targets Illegal Emission Control "Defeat 

Devices" Sold for Autos, Press Release 07-490, Washington, DC, July I 0, 2007, available a! 

https://www .j ustice.gov /archive/ opa/pr/2007/J u ly /07 _ enrd __ 490 .htm I. 

7 
71 


27895.053

lifetimes.''Jd. The Bush administration's civil case was based on the sale of defeat devices to 

on-road vehicle users, despite the company's claims that the devices were for otT-road use only. 

!d. If the Bush administration had been proceeding under a Clean Air Act that excluded defeat 

device sales where a company claimed it was not the "purpose" of the defeat device to be used 

on-road, then this 2007 case--and others like it--would not have been possible. Hundreds of 

thousands of tons of illegal air pollution increases due to defeat devices in on-road vehicles 

would be perfectly fine. Americans would face excess air pollution and health risks equivalent to 

the emissions from millions more cars on the road. 

Motor vehicles modified for racing present a situation where "there may be no way to 

produce parts that would only operate on modified motor vehicles." 11 Were these vehicles 

limited to solely racing vehicles, the bill's impacts would be limited and modest. However. past 

enforcement cases indicate that defeat devices generally are in wide use in on-road vehicles, and 

S. 203 would sanction the increase use of defeat devices-with the certainty that defeat devices 

will be used on-road, despite the intent of bill proponents that this not happen, and with an 

impossible or near-impossible legal standard for the Department of Justice to overcome in cases 

against defeat device manufacturers. We do not believe that to be the intent of S. 203 cosponsors, but that will be the bill's impact in the real world. 

This will cause harmful impacts on air quality and Americans' health. In prior defeat 

device cases. the government has found that: 

In some of the supplier cases, settlements between EPA, the Department of Justice, and 

the defendants were based on the sale of defeat devices to road vehicle users de:,pite 

claims by the manuj£1cturer that the parts werefor off-road or nonroad use only. 12 

11 Id. at 3. 

12 !d. 

8 
72 


27895.054

In fact, in one enforcement case, the supplier acknowledged that it had sold over 85,000 defeat 

devices that it should have known were being used by on-road vehicle users. 13 In so doing, their 

sales led to increased emissions of almost 72,000 tons ofNOx, over 4,200 tons of non-methane 

hydrocarbons, and 380 tons of particulate matter. 14 Together, these emissions equate to nearly 

twice the pollution emitted by Volkswagen from 2008 until the 2015 enforcement action. 15 For 

context, the study analyzing the impact of the VW "dieselgate" found that the company's 

violations "result[ed] in a total of 59[] premature deaths, 87% of which arc attributable to the 

PM2.s exposure and I 3% to ozone exposure." 16 

What's more, the NOx emissions from defeat devices sold by just one.company, 71,000 

tons, are one-and-one-halftimes the emissions from every mobile source-every car, truck, semi, 

bus, and bulldozer-in the State of West Virginia, for an entire year. Those same NOx emissions 

are equivalent to half of the annual mobile source emissions in Kansas or Iowa. And if you add 

in the emissions from three other companies' defeat devices, the resulting NOx pollution is 

equivalent to half of Wisconsin's annual mobile source NOx emissions, or over half of 

Nebraska'sP Defeat devices sold by those manufacturers are on the road today. They arc 

13 Consent Agreement, In the Matter ofH&S Performance, LLC, U.S. EPA, Environmental 

Appeals Board, No. CAA-HQ-2015-MSEB 8248, 8 (Dec. 17, 2015), PG 8 available at 

https://www.era.gov/sites/production/fi les/20 I 6- 0 1/documents/hscafo.pdf. 14 Jd. 

15 Steven R. Barrett eta!.. Impact of the Volkswagen emissions control defeat device on US 

public health, Environmental Research Letters, Volume 10, Number I I, October 2015, 

available at 

http://iopscicnce.iop.org/article/l 0.1088/1748-9326/10/11/1 I 4005/meta (estimating VW 

emissions. 

16 !d. 

17 U.S. EPA, 2014 National Emissions Inventory data, available at https://www3.epa.gov/cgibin/broker?polchoice=NOX& _ debug=O& _service=data& _program=dataprog.national_l .sas 

(providing state-wide emissions of smog-forming nitrogen oxides (NOx) from all mobile 

sources--on-road and off-road--for an entire year, are: 46,859 tons in West Virginia: 138.800 

9 
73 


27895.055

emitting enormous amounts of illegal air pollution every year-because once a defeat device is 

on a vehicle, EPA has no practical ability to bring enforcement actions against tens of thousands 

of individual vehicles that are driving on the nation's roads and highways. As the CRS has 

testified, "EPA has historically not taken action against individuals," despite having that 

authority IH S.203 is silent as to how to solve the problems that it worsens. 

In fact, S. 203 entirely ignores the thicket of problems relating to abuse and enforcement 

that its provisions would create. There are over 240 million vehicles on the road today, and abuse 

of the particular "exclusion" afforded by S. 203 would have very negative impacts on air quality 

and Americans' health. There are relatively few vehicles used solely for racing, and these 

vehicles are driven for relatively small periods of time, making their air pollution contributions 

comparatively insignificant. Narrowly crafted, targeted language that applied only to such 

modifications and vehicles likely would have little adverse effect on motor vehicle emissions, 

relative to current circumstances. Unfortunately, the RPM Act is the opposite of narrow and 

targeted. It is not realistic nor workable to expect that the federal government can protect 

Americans by ensuring that each vehicle equipped with defeat devices ·intended' for exclusive 

competitive use is in fact being used only tor that non-road, competitive racing purpose. 

The current bill language makes it effectively impossible for the federal government to 

stop, or enforce after-the-fact, the sale of these devices, as long as a company claims that they 

intend the device to be used for racing. Companies that know, companies that should have 

known, and companies that act in willful disregard of whether defeat devices are being used onroad may simply claim under S. 203 that on-road. non-competition use was not their '"purpose." 

tons in Kansas; 140,585 tons in Iowa; 14 7,392 Ions in Nebraska; 156,318 tons in Wisconsin; 

195,320 tons in Virginia.) 

IR Supra no/e 5, at 3. 

10 
74 


27895.056

This changed legal standard represents an extreme weakening of the standard the Department of 

Justice has used to hold companies liable for selling illegal defeat devices with awareness and 

abuses that do not rise all the way to the level of purposeful intent. It would not be difficult as a 

matter of drafting to exempt racing-only modifications from pollution control requirements, 

without the unworkable "purpose" condition. But S. 203 goes far beyond that, threatening 

serious harm to Americans' health and air quality. We urge you to fix the bilrs language to avoid 

these undesired consequences., and to vote against S. 203 if it remains in its current, harmful 

form. 

S. 839- The "Blocking Regulatory Interference from Closing Kilns Act of2017" 

Unlike almost every other industrial source of air pollution in the nation, there currently 

are no federal hazardous air pollutant standards in place for brick manufacturers. The industry is 

in the 17th year past the time that Congress directed that toxic pollution from these industrial 

facilities should be covered by Clean Air Act standards. Now, as litigation on these facilities is 

about to come to a close, S. 839 represents an effort to indefinitely delay the regulation that all 

other sources of industrial hazardous air pollution must meet. There is no reason that this bill 

should become law. It rewards delay tactics and prior Clean Air Act lawbreaking that the brick 

manufacturing industry supported. The bill seeks to further avoid federal regulation of deadly. 

carcinogenic air pollution at the expense of air quality and Americans living ncar these facilities. 

The American people have been subject to excessive levels of highly toxic air 

pollution from brick manufacturers for seventeen years longer than the deadline Congress 

established in the 1990 Clean Air Act amendments. Meanwhile, other industries have been 

meeting required standards for one to two decades. It is unjustified and harmful to millions of 

II 
75 


27895.057

Americans to allow this one industry sector to continue evading standards for reducing 

hazardous air pollution. 

Background 

There are approximately 150 brick and clay kilns and ceramics plants large enough to be 

called "major sources" subject to regulation under the Clean Air Act's hazardous air pollutant 

(HAP) program. 19 These plants emit significant amounts of hazardous air pollutants, including 

mercury and other heavy metals, dioxins/furans and acid gases. Acid gases in particular account 

for over 99% of kilns' toxic emissions and include hydrogen chloride, hydrogen fluoride and 

chlorine. These highly toxic pollutants cause serious health effects, including severe respiratory 

illness, kidney damage, cancer and even death. 

Section 112(d) of the Clean Air Act requires EPA to set emissions standards for 

hazardous air pollutants emitted by certain stationary sources listed under section 112(c) of the 

Act. 42 U.S.C. § 7412(d) & (c). EPA first issued standards for this sector on May 16,2003. For 

existing sources of pollution, section 112(d)(3) of the Act requires a standard that is at least as 

stringent as the level of reduction achieved by the best performing 12 percent of already existing 

sources. 42 U.S.C. § 7412(d)(3). For new sources, the standard must be set at a level at least as 

stringent as the control level achieved in practice by the best controlled similar source. Jd. 

EPA was originally required to set standards for this source category in November of 

2000. EPA did not issue those standards until2003. 68 Fed. Reg. 26.690 (May 16, 2003). The 

Bush administration EPA proposed standards that did not meet the Clean Air Act's plain 

19 Memorandum from Kristin Sroka, RTI International. to Sharon Nizich, EPA/OAQPS/SPPD 

RE: Development of Cost and Emission Reduction Impacts for the Final BSCP Manufacturing 

NESHAP. EPA-HQ-OAR-2013-0291-0664. Sept. 24. 2015. 

!2 
76 


27895.058

language and that were inconsistent with governing D.C. Circuit caselaw interpreting the Act. 20 

Representatives for the brick and structural clay manufacturers supported the proposal of the 

unlawful standards. Members of the public commented to EPA that the proposed standards 

plainly violated the Clean Air Act. On March 13, 2007, the U.S. Court of Appeals for the D.C. 

Circuit invalidated the 2003 rule, siding with the arguments of commenters that had pointed out 

the standards were unlawful, and rejecting the arguments of the Bush EPA and brick and clay 

products manufacturers. The court found that the rule illegally attempted to redefine "best 

performing" sources in violation of the plain language of Clean Air Act section 112( d)(3), and 

was unlawfully weak and unprotective. See Sierra Club v. EPA, 479 F. 3d. 875 (D.C. Cir. 2007). 

Following extensive delay on remand, EPA proposed new standards pursuant to a consent decree 

on December 18, 2014, see 79 Fed. Reg. 75,622, and finalized standards on October 26, 2015, 

see 80 Fed. Reg. 65,470. 

Representatives from the brick and clay products manufacturing industry and the Sierra 

Club challenged the final standards in court in 2015. On October 3'd, 2017, approximately 4 

weeks before the court hearing, the EPA announced it would reconsider the standards and sought 

to place the lawsuits in abeyance, indefinitcly21 EPA did so, fully aware of pending 

congressional legislation to delay compliance indefinitely with the hazardous air pollution 

standards so long as litigation and all appeal opp01iunities were continuing. The industry litigants 

suppo11ed EPA· s move; the health and environmental parties opposed. 

'

0 67 Fed. Reg. 47,894 e/ seq (July 22, 2002). 

' 1 Respondents' Motion to Continue Oral Arguments and Hold Proceedings in Abeyance, No. 

15-1487 eta!. (D.C. Cir.) (Oct. 3, 2017), available at 

(https:/ /www .eenews.net/assets/20 17/1 0/04/documcnt . gw_ 0 l.pdf. 

13 
77 


27895.059

On October 26th, the D.C. Circuit Court of Appeals denied EPA's request. 22 The court 

order directed "the parties [to] be prepared to address with specificity at oral argument whether 

an additional period of abeyance is appropriate for this matter.''23 Then on Friday night, 

November 3rd, 2017, a mere 6 days before the court hearing, EPA informed the court and the 

Sierra Club that it wished to sever the petitions in the lawsuit, and "hold the proceedings on the 

industry petitions in abeyance"-indefinitely24 The agency's court tiling said that "EPA has 

determined that no further agency action is warranted as to the issues raised by Environmental 

Petitioners." EPA urged the court to hear and resolve those issues-but not the industry legal 

challenges 25 In a letter attached to the court filing, EPA said that it had decided to 

administratively reconsider issues raised by the industry litigants-but not the environmental 

petitioners.26 

The court hearing on the Environmental Petitioners' challenges to the standards happened 

on November 9th. At the hearing, the federal judges were incredulous and annoyed over the 

EPA's request-with the industry's backing·~to ftnther delay resolution of the standards that 

were nearly 20 years overdue already: 

Federal judges today slammed U.S. EPA for foot-dragging on air standards for brick 

and tile manufacturers that are already nearly 20 years behind schedule. 

By law, EPA was supposed to adopt maximum achievable control technology, or 

MACT, standards tor the industry by 2000. But the Trump EPA recently said it would 

22 Order, No. 15-1487 eta/. (D.C. Cir.) (Oct. 26, 20 17), available at 

https://www.eenews.net/assets/20 1711 0/26/document_gw _ 06.pdf. 

23 !d. 

24 Respondents' Notice of Action on Brick/Clay Rule and Unopposed Motion to Sever and Hold 

in Abeyance Industry Petitions, No. 15-1487 eta/. (D.C. Cir.) (Nov. II, 20 17), available at 

https://www .eenews.net/assets/20 17/1 1/06/document_gw _ 04.pdf. 

25 !d. 

26 !d. 

14 
78 


27895.060

address industry concerns and finalize a new rule by 2019 to replace standards that the 

Obama administration issued. 

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit 

heard arguments from environmental groups over the Obama-cra rule. But when an 

attorney for EPA took the stand, the judges shifted from questioning her on the 

environmental claims to frustration over the agency's delays. 

"This rule was supposed to be out in 2000 .... Under your scenario. we're now going to 

be 19 years past that," Judge Patricia Millett said. "Why is the time frame you proposed 

reasonable? 

"Don't you have some duty to act with exceptional urgency?'"27 

The judges were annoyed further by the inability of government counsel to say with any 

"specificity" when and why the EPA decided to review and potentially change the rule. "We're 

trying to move this case forward," one judge said.28 Government attorneys never did supply 

those answers.29 Finally, the third judge indicated that the court might simply deny EPA's 

motion to hold the industry lawsuit in abeyance, saying the court could proceed and decide the 

industry claims. 

"I don't see what we're taking away from you if we deny your motion," he said, adding 

that EPA would still be able to revise the standards in a new rulemaking regardless of 

the court's decision 30 

Legislation 

S. 839 aims to help industrial emitters avoid regulation by seeking tofurther delay 

implementation of seventeen years-overdue hazardous air pollution standards for brick and clay 

products manufacturing facilities. The legislation would delay compliance deadlines until every 

lawsuit has been fully litigated and appealed, including to the Supreme Court. This would have 

27 ''Judges scoff as EPA requests more time for rule due in 2000," Amanda Reilly, E&E News 

(Nov. 9, 2017). 

28 I d. 

,, Jd. 

"Id. 

15 
79 


27895.061

the effect of stalling these much needed and overdue health protections for as long as industry 

lawyers can keep a case alive, no matter how lacking in merit legal challenges may be. The 

already-harmful legislative delay now would be exacerbated by obvious manipulation and 

indefinite delay of the industry lawsuit by the current administration. with the full support of the 

industry litigants, as shown by events of the past six weeks. Congress should not reward these 

tactics. 

Federal Courts already have the authority to stay the effectiveness of a rule during a 

court's review, but industry has not met-nor even attempted-the exacting legal standard to 

justify any stay. Far more often, as here, the regulations remain in effect or may take effect while 

parties challenge the rule. The standard to delay a rulemaking's effectiveness requires a party to 

show that: (I) it is likely to prevail on the merits of the appeal; (2) without relief, it will be 

irreparably harmed; (3) issuance of the stay would not substantially harm other parties interested 

in the proceedings: and (4) the stay would favor the public interest. As noted, none of the 

industry litigants have even asked the court to stay the rule, presumably because they recognize 

that they do not meet the legal requirements. 

Incentivizing the types of delay tactics that the BRICK Act would condone sets precisely 

the wrong legal precedent. The bill's language allows for delays relating to "any rule" for brick 

kilns under section 112 of the Act. including any that "succeeds or amends" the 2015 standards. 

This sets up the judiciary and the American people for an endless merry-go-round that never 

results in lawfully required hazardous air pollution reductions. We urge Senators to vote against 

S. 839. 

16 
80 


27895.062

S. 1857- A Bill to establish a compliance deadline of May 15.2023. for Step 2 emissions 

standards for new residential wood heaters, new residential hydmnic heaters, and forcedair furnaces 

S. 1857 delays compliance deadlines for Clean Air Act standards for new wood heaters 

until May 15,2023. In so doing, the bill would reward laggards in the industry by allowing them 

to avoid compliance with standards that most manufacturers currently meet. Moreover, the 

underlying standards are already flexible and have a lengthy transition period. This bill and its 

resulting delays would harm air quality and health in the communities where these devices are 

most used. S. 1857 also disadvantages manufacturers who played by the rules and are already 

meeting the standards. The legislation thus discourages desirable innovation and responsible 

corporate steps, in addition to increasing air pollution and harming Americans' health. 

Background 

In 2015, EPA updated Clean Air Act New Source Performance Standards (NSPS) for 

residential wood heating devices. EPA last updated the standards in 1988. The Clean Air Act 

requires that EPA review and revise these types of standards as necessary every eight years, 

following their adoption in 1988. EPA did not undertake this review until 2015, making the 

updated standards 21 years overdue. 

The 2015 standards will reduce fine particle pollution and VOCs from new wood heaters 

by almost 70%. The standards cut carbon monoxide pollution by 62%. 31 These reductions will 

especially benefit communities where wood smoke is a major contributor to deadly fine particle 

pollution. The standards also will make heaters more efficient. allowing homeowners to use less 

wood and save money. EPA estimated that the benefits of these cleaner residential wood heaters 

31 U.S. EPA, Fact Sheet: Overview of Final Updates to Air Emissions Requirements for New 

Residential Wood Heaters, available at 

https://www.cpa.gov/residential-wood-heaters/fact-sheet-overview-final-updates-air-emissionsrequirements-new 

17 
81 


27895.063

range between $3.4 to $7.6 billion annually, with costs estimated at $46 million. This means $74 

to $165 in benefits for every $1 in costsY The Agency noted that the rule has an unusually large 

net benefit due to the costly health impacts associated with wood smoke and the comparative 

affordability of pollution reductions ti·om new wood heaters 33 

In promulgating the 2015 standards, EPA built in five years for manufacturers to comply 

with stronger emissions control technology requirements. This phased approach started in 2015 

with Step I of the rulemaking. Step 2 compliance deadlines begin in 2020. There is a long list of 

devices that already meet these Step 2 standards, and Congress should not reward the laggards.34 

Moreover, some manufacturers oppose delaying the standards. The Hearth, Patio & Barbecue 

Association, along with the Northeast States for Coordinated Air Use Management 

(NESCAUM), wrote to members of the U.S. House of Representatives about H.R. 694, a 

companion bill in the House. These groups voiced strong support for compliance by 2020, noting 

that EPA's standards will: 

save consumers money, many of whom are low-income households, by lowering fuel 

costs through increased appliance efficiency. Replacing non-EPA-certified stoves with 

today's modern stoves will reduce health risks from exposure to wood smoke, but this 

can only be done if products are clean burning, fuel efficient, and affordable. Finally, this 

program will ensure continued innovation in U.S. manufacturing that will help keep 

domestic companies competitive in the solid fuel industry35 

Reducing the adverse air quality and health hazards from non-compliant wood stoves is critically 

important. 

32 /d. 

}] /d. 

34 U.S. EPA. Compliance. List of EPA Certified Wood Stoves, October 2017 available at 

https://www.epa.gov/compliance/list-epa-certified-wood-stoves. 

35 Letter from The Northeast States for Coordinated Air Use Management (NESCAUM) and the 

Hearth. Patio. and Barbcque Association, May 8. 2017 available a/ 

http://www.nescaum.org/documents/nescaum-hpba-joint-letter-to-congress-wood-dcvice-nsps20170508.pdf. 

18 
82 


27895.064

Health Impacts 

Wood stoves are a significant source of air pollution. According to the American Lung 

Association: 

Residential wood heaters include open fireplaces, outdoor and indoor wood-fired boilers, 

indoor heaters, furnaces, masonry heaters and wood and pellet stoves. The U.S. Census[] 

reports that nearly two percent of all U.S. households use wood as a primary heat source. 

In 2006, one study estimated that approximately 14 to 17 million such devices were then 

in use in the United States. [] Annual sales of outdoor wood boilers grew ten-fold 

between 2000 and 2005-a rate suggesting that 500,000 outdoor wood boilers may have 

been in use by 2010[] 3 6 

The health impacts from these devices are real and hannful. Extending compliance deadlines 

only further delays the cleanups that should have occurred decades ago. Wood stove smoke 

contains deadly fine particle pollution, but it also contains carbon monoxide, volatile organic 

compounds, black carbon, and hazardous air pollutants, such as cancer-causing benzene. 

Particulate Matter 

The EPA recognizes wood smoke as a major source of fine particulate matter emissions, 

making up 7% of anthropogenic emissions of primary PM2.s in 2002. 37 Fine particulate matter 

causes premature death, cardiovascular disease and respiratory harms. In particular, EPA's 

Integrated Science Assessment for particulate matter found that wood smoke was associated with 

an increased risk of cardiovascular mortality, as well as more emergency department visits from 

cardiovascular disease and respiratory diseases. In late 2013, the International Agency for 

Research on Cancer, part of the World Health Organization, concluded that particulate matter 

36 American Lung Association, Comments on U.S. Environmental Protection Agency Standards 

of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and 

Forced Air Furnaces and New Residential Masonry Heaters, EPA Docket 1D NO. EPA-HQOAR-2009-0734 available af http://www.lung.org/assets/documents/advocacyarchive/comments-to-epa-woodburning.pdf 

37 U.S. EPA. Integrated Science Assessment (!SA) for Particulate Matter (Final Report. Dec 

2009). U.S. Environmental Protection Agency, Washington, DC. EPA/600/R-08/139F. 2009, 

available af https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=216546. 

19 
83 


27895.065

could cause lung cancer. 38 The !ARC reviewed the most recent research and reported that the 

risk of lung cancer increases as fine particle levels risc 39 

Carbon Monoxide 

Wood smoke is a primary source of carbon monoxide.40 Research has shown that shortterm levels of carbon monoxide can be fatal, and contribute to over 20,000 nonfatal emergency 

room visits each year in the U.S. 41 EPA's Integrated Science Assessment concluded that shortterm ambient levels of carbon monoxide are likely to cause cardiovascular morbidity, may 

contribute to adverse birth outcomes and developmental effects, and cause harm to the central 

nervous and respiratory systems, even at low levels.42 The Agency for Toxic Substances and 

Disease Registry concluded that "[a]lthough there may be an exposure level that can be tolerated 

with minimal risk of adverse effects, the currently available toxicological and epidemiological 

data do not identify such minimal risk levels." 43 

Nitrogen Oxides 

The EPA recognized wood smoke, including residential wood burning, as a source of 

nitrogen oxides in the 20081ntegrated Science Assessment of Oxides of Nitrogen-Health 

38 International Agency for Research on Cancer, World Health Organization, Press Release: 

Outdoor air pollution a leading environmental cause of cancer deaths, October 17, 2013 

available at https://www .iarc.fr/en/media-centre/iarcnews/pdf/pr221_ E.pdf. 

39 ld. 

40 U.S. EPA. Integrated Science Assessment for Carbon Monoxide (Final Report, Jan 201 0). U.S. 

Environmental Protection Agency, Washington, DC EPA/600/R-09/019F, 2010, available at 

https://cfpub.epa.gov/ncca/risk/rccordisplay.cfrn?deid=2 I 8686. 

41 ld. 

42 Jd. 

43 Agency for Toxic Substances and Disease Registry (A TSDR) 2012 Toxicological Profile of 

Carbon Monoxide. p. 23, available at 

https://www.atsdr.cdc.gov/toxprollles/TP.asp?id= 1145&tid=253 . 

20 
84 


27895.066

Criteria (NOx lSA, 2008). The NOx !SA estimated that residential wood burning produced 

40,000 metric tons of nitrogen oxides in 2002 (Table 2.2-l )

44 

Hazardous Air Pollutants 

Wood smoke contains at least 26 pollutants specified in the Clean Air Act as hazardous. 

Some, such as benzene and formaldehyde, are known carcinogens. Others have non-carcinogenic 

impacts. These gases can also irritate the eyes, skin, and respiratory tract, impair lung function, 

and affect vital organs. 

Conclusion 

The damage from S. 1857 will persist not simply for the three years of delay proposed in 

the bill, but for years and decades to come, if new and noncompliant higher-polluting wood 

heaters sold between 2020 and 2023 continue to emit more pollution over the entire lifespan of 

the equipment. We urge Senators to vote against S. 1857. 

S. 1934- The "Alaska Remote Generator Reliability and Protection Act" 

EPA regulations list special requirements for certain types of generators in Alaska.45 S. 

1934 specifically exempts non-emergency compression ignition internal combustion engines (CI 

ICE) that were made after 2014. from complying with Tier 4 particulate matter standards, or 

installing a particulate matter pollution control device. The bill would eliminate those 

requirements for engines made after 2014, and would allow for emission control devices only 

when and if the Administrator determines that "such a requirement will not negatively affect 

electricity or energy reliability in any remote area of the State of Alaska." 

44 U.S. EPA. Integrated Science Assessment for Oxides of Nitrogen- Health Criteria (Final 

Report. Jul 2008). U.S. Environmental Protection Agency, Washington. DC. EPA/600/R-08/071. 

2008, available at https:/icfpub.epa.gov/ncea!risk/recordisplay.cfm?deid= 194645. 45 40 C.F.R. 60.4216(c). 

21 
85 


27895.067

This equipment emits nitrogen oxides. particulate matter. sulfur dioxide. carbon 

monoxide, and hydrocarbons, all of which are extremely harmful to human health. EPA notes 

that: 

Stationary internal combustion engines are common combustion sources that collectively 

can have a significant impact on air quality and public health. The air toxics emitted from 

stationary engines include formaldehyde, acrolein, acetaldehyde and methanol. Exposure 

to these air toxics may produce a wide variety of health difficulties for people including 

irritation of the eyes, skin and mucous membranes, and central nervous system problems. 

Engines also emit the conventional air pollutants created when fuel is burned including 

carbon monoxide (CO). nitrogen oxides (NOx). volatile organic compounds (VOCs), and 

particulate matter (PM). The health effects of these pollutants include a range of 

respiratory (breathing) issues. especially asthma among children and seniors 46 

The U.S. EPA finalized standards for these and other facilities in July of2016. In doing so, EPA 

adopted a definition for what was a "remote area of Alaska" consistent with previous 

rulemakings. 88 Fed. Reg. 44,215 et seq. (July 7, 2017). 

S. 1934 explicitly excuses regulatory requirements for these types of new engines that are 

classified as non-emergency from compliance with clean air requirements. Though the purposes 

of the bill seem to suggest some sort of justification based on "electricity or energy reliability in 

remote areas of Alaska," in section 2(b), there are no legislative findings that support this 

suggestion. Nor is the legislation accompanied by any legislative finding or evidence that 

regulations tor post-20 14, cleaner-burning engines will create demonstrated risks to electricity or 

energy reliability. 

It is a dangerous legislative precedent to prohibit cleaner-burning engines in the absence 

of thorough legislative investigation and proof of harm that outweighs the clean air and public 

health benefits. S. 1934 would delay adoption of cleaner diesel engines indefinitely in the 

relevant areas of Alaska. We are not aware of proven reliability threats that would justify such 

""U.S. EPA. Fact Sheet "Basic Information for Stationary Engines," available at bttps://www.cpa.gov/stationarycn gines/basic-information-stationary-engines. 

22 
86 


27895.068

indefinite delay, especially for non-emergency engines. The legislation further creates an 

inequity for sources that must comply with updated clean air standards. We urge Senators to vote 

against S. 1934. 

23 
87 

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. 

88 

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:] 

89 


27895.069

These EPA staff-level comments are being provided solely as technical assistance to t/Je Senate 

Environment and Public Works Committee. Tl1e comments s/Jould not be construed in any way as 

representing tile policy positions of tile agency or the Administration on this bill. 

U.S. EPA Technical Assistance on S. 203, the 11Recognizing the Protection of Motorsports Act 

of 2017" or the "RPM Act of 2017" 

September 2017 

1. EPA supports an exemption from the tampering provisions of 42 U.S.C. § 7522(a)(3)(A) for 

the modification of certified motor vehicles into vehicles used solely for competition 

motorsports. 

2. EPA supports an exemption from the defeat device provisions of 42 U.S.C. § 7522(a)(3)(B) 

for components used to modify certified motor vehicles into vehicles used solely for 

competition motorsports. 

3. EPA has observed a growing market in electronic devices that can be used to render 

inoperative or remove the emission controls of certified motor vehicles. 

4. While some of these devices may be used to modify certified motor vehicles into vehicles 

used solely for competition motorsports, EPA has observed that the same or similar 

electronic devices can unlawfully be used to defeat emission controls in vehicles not used 

solely for competition motorsports (e.g., to render inoperative or remove the emission 

control systems in light-duty diesel trucks). This unlawful use can result in significant 

excess air pollution. 

5. This technical assistance therefore aims to regularize the sale and use of these electronic 

devices on vehicles used solely for competition motorsports, while retaining the 

prohibition against their use in other contexts. 

6. EPA believes that if an end user wants to render inoperative or remove the emission 

controls of a certified motor vehicle in order to race, the vehicle should no longer be 

registered for use on streets or highways. If an end user wants to retain the vehicle's 

registration for on-road use, the defeat device should not be installed, even temporarily. 

7. EPA therefore recommends an exemption in Section 2 of 5.203 from the tampering and 

defeat device prohibitions of the Act for vehicles that are no longer registered to be 

operated on a street or highway. 

8. This is a bright line test applicable at the point of sale and enforceable by a comparison 

of vehicle identification numbers collected at the point of sale to state motor vehicle 

registration information. Those that install these electronic devices on a vehicle 

registered for on-road use would be subject to the tampering prohibition of 42 U.S.C. 

§ 7522(a)(3)(A). Those that manufacture or sell those devices without taking adequate 

precautions that emission controls would be defeated only on vehicles not registered for 

on-road use would be subject to the defeat device prohibition of 42 U.S.C. § 7522(a)(3)(B). 
90 


27895.070

These EPA staff-level comments are being provided solely as technical assistance to tile Senate 

Environment and Public Works Committee. Tl1e comments should not be construed in any way as 

representing the policy positions of the agency or the Administration on t/?is bill. 

9. EPA would discourage an approach that focuses solely on the end use of the modified 

vehicle (e.g., by excluding from the definition of "motor vehicle" vehicles used solely for 

competition) because of the profound difficulty in policing the end use of vehicles. For 

example, though the end use approach excludes competition vehicles from non-road 

emission standards under 42 U.S.C. § 7550(10), EPA cannot determine how many of the 

approximately 85,000 competition dirt bikes lawfully imported each year are actually 

used "solely for competition." Accordingly, EPA proposes that Section 3 of 5.203 be 

removed. 

10. EPA proposes a two-year deadline in which to promulgate implementing regulations. 
91 


27895.071

TIJese EPA staff-/eve/ comments are being provided solely as tecllnical assistance to t11e Senate 

Environment and Public Works Committee. T11e comments s110uld not be construed in any way as 

representing the policy positions of tile agency or the Administration on tills bill. 

115TH CONGRESS 

1ST SESSION 

S.203 

To reaffirm that the Environmental Protection Agency may not regulate vehicles used solely for 

competition, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 24, 2017 

Mr. BURR (for himself, Mr. ROUNDS, Mr. RUBIO, Mr. TILLIS, Mr. CRAPO. Mr. HELLER, Mr. GRAHAM, 

Mr. BOOZMAN, Mr. MORAN, Mrs. ERNST, Mr. MANCHrN, Mr. INHOFE, Mrs. FISCHER, Mr. TESTER, 

and Mr. DoNNELLY) introduced the following bill; which was read twice and referred to the 

Committee on Environment and Public Works 

A BILL 

To reaffirm that the Environmental Protection Agency may not regulate vehicles used solely for 

competition, and for other purposes. 

Be it enacted by the Senate and HotL~e of Representatives of the United States o.f America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the "Recognizing the Protection ofMotorsports Act of2017" or 

the "RPM Act of 20 17". 

SEC. 2. F:XCIXSION EXEMPTION FROM ANTI-TAMPERING PROVISIONS. 

Section 203(a) of the Clean Air Act (42 U.S. C. 7522(a)) is amended by adding at the end 

the following: ''No action with respect to any device or element of design described in paragraph 
92 


27895.072

These EPA staff-level comments are being provided solely as teclmical assistance to t11e Senate 

Environment and Public Works Committee. T!Je comments stwuld not be construed in any way as 

representing the policy positions of the agency or the Administralion on this bill. 

(3) shall be treated as a prohibited act under that paragraph if the action is for the purpose of 

modifying a motor vehicle that is no longer registered to be operated on a street or hi!!ll\vav ffit.tl 

a vehide and is to be used solely for competition.". 

SI':C. 3. DJ<;FINITJON OF MOTOR ¥E-mGbE. 

Section 21 6(2) of the Clean ,\ir Act (P t.:.s.C. 7550(2)) is amendcJ-

(I) hy ·trilcing ''(2) The term" and in.;erting the follow-if!tf. 

"'(2) l\JOTOR Vr:! IICU~ 

''(:\)I'; GEl\FRAL. The term'': and 

(2) b) adding at the end the f(J!Iov. ing: 

''(B) EXCU.'SIO>:. The term ·nwtor vehicle' does not include a vehicle u;;ed 

(;olely l(w competitioH. including a\ chicle used solely tiw competition thai was 

eo A\ erted fh1111 a motor veh ide:·. 

SEC . .J4. REGULATIONS. 

With in >Jot later than l bears after the date of enactment of this Act, the Administrator of 

the Environmental Protection Agency shall ~promulgnt<: l!flTregulation~ necessary to 

implement the amendments made by this Act. 
93 

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 costbenefit 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? 

94 

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? 

95 

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. 

96 

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 

97 

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. 

98 

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. 

99 

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. 

100 

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 standVerDate Aug 31 2005 07:25 Jan 10, 2018 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6602 S:\_EPW\DOCS\27895.TXT SONYA
101 

ard 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. 

102 

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. 

103 

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:] 

104 


27895.073

AUTHENTICATE9 U.S. GOVERNMENT 

INFORMATION 

GPO 

115TH CONGRESS 

1ST SESSION 

II 

S.l857 

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. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 26, 2017 

Mrs. CAPITO (for herself, Mrs. McCAsraLL, Mr. MANCHIN, and Mr. SHELBY) 

introduced the follo·wing bill; which was read twice and referred to the 

Committee on Environment and Public Works 

A BILL 

To establish a compliance deadline of May 15, 2023, for 

Step 2 emissions standards for new residential wood 

heaters, new residential hydronic heaters, and forcedair furnaces. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. STEP 2 COMPLIANCE DEADLINE FOR NEW RESI4 DENTIAL WOOD HEATERS, NEW RESIDENTIAL 

5 HYDRONIC HEATERS, AND FORCED-AIR FUR· 

6 NACES. 

7 (a) IN GENERAL.-With respect to the final rule enti8 tled "Standards of Performance for New Residential 
105 


27895.074

2 

1 Wood Heaters, New Residential Hydronic Heaters and 

2 Forced-Air Furnaces" (80 Fed. Reg. 13672 (March 16, 

3 2015)), the compliance deadline for Step 2 emissions 

4 standards shall be May 15, 2023. 

5 (b) TECHNICAL AND CONFORMING CIIANGES.-Not 

6 later than 60 days after the date of enactment of this Act, 

7 the Administrator of the Environmental Protection Agen8 cy shall finalize such technical and conforming changes to 

9 rules and guidance documents as may be necessary to im10 plement subsection (a). 

0 

•S 1857 IS 
106 


27895.075

AUTHENT!CATE9 U.S GOVERNMENT 

INFORMATION 

GPO 

I 15TH CONGRESS 

1ST SESSION S.203 

To reaffirm that the Environmental Protection Agency may not regulate 

vehicles used solely for competition, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 24, 2017 

II 

Mr. BURR (for himself, Mr. RoUNDS, Mr. RuBIO, Mr. TILLIS, Mr. CRAPO, 

Mr. HELLER, Mr. GRAHAM, Mr. BoOZl'.1AN, Mr. MoRAN, Mrs. ERNST, 

Mr. MA..N'CHIN, Mr. INHOFE, Mrs. FISCHER, Mr. TESTER, and Mr. DoNNELLY) introduced the following bill; which was read twice and referred 

to the Committee on Environment and Public Works 

A BILL 

To reaffirm that the Environmental Protection Agency may 

not regulate vehicles used solely for competition, and 

for other purposes. 

1 Be it enacted by the Senate and H ou,se of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Recognizing the Pro5 tection of Motorsports Act of 2017" or the "RPM Act of 

6 2017". 
107 


27895.076

2 

1 SEC. 2. EXCLUSION FROM ANTI-TAMPERING PROVISIONS. 

2 Section 203(a) of the Clean Air Act (42 U.S.C. 

3 7522(a)) is amended by adding at the end the following: 

4 "No action with respect to any device or element of design 

5 described in paragraph (3) shall be treated as a prohibited 

6 act under that paragraph if the action is for the purpose 

7 of modifying a motor vehicle into a vehicle to be used sole8 ly for competition.". 

9 SEC. 3. DEFINITION OF MOTOR VEHICLE. 

10 Section 216(2) of the Clean Air Act (42 U.S.C. 

11 7550(2)) is amended12 (1) by striking "(2) The term" and inserting 

13 the following: 

14 "(2) MOTOR VEHICLE.-

15 "(A) IN GENERAL.-The term"; and 

16 

17 

18 

19 

20 

21 

(2) by adding at the end the following: 

"(B) EXCLUSION.-The term 'motor vehicle' does not include a vehicle used solely for 

competition, including a vehicle used solely for 

competition that was converted from a motor 

vehicle.". 

22 SEC. 4. REGULATIONS. 

23 Not later than 1 year after the date of enactment 

24 of this Act, the Administrator of the Environmental Pro-

•S 203 IS 
108 


27895.077

3 

1 tection Agency shall finalize any regulation necessary to 

2 implement the amendments made by this Act. 

0 

•S 203 IS 
109 


27895.078

AUTHENTICATE9 US GOVERNMEN! 

INFOAMA1'10N 

GPO 

115TH CONGRESS 

1ST SESSION 

II 

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. 

IN THE SENATE OF THE UNITED STATES 

APRIL 5 (legislative day, APRIL 4), 2017 

Mr. WICKER (for himself, Mrs. CAPITO, and Mr. INHOFE) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives ofthe United States ofAmerica in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Blocking Regulatory 

5 Interference from Closing Kilns Act of 2017". 
110 


27895.079

2 

SEC. 2. EXTENDING COMPLIANCE DATES (PENDING JUDI2 CIAL REVIEW) OF RULES ADDRESSING NA3 TIONAL EMISSION STANDARDS FOR HAZ4 ARDOUS AIR POLLUTANTS FOR BRICK AND 

5 STRUCTURAL CLAY PRODUCTS MANUFAC6 TURING OR CLAY CERAMICS MANUFAC7 TURING. 

8 (a) EXTENSION OF COMPLIANCE DATES.-

9 (1) EX1.'ENSION.-Each compliance date of any 

10 final rule described in subsection (b) is deemed to be 

11 extended by the time period equal to the time period 

12 described in subsection (c). 

13 (2) DEFINITION.-In this subsection, the term 

14 "compliance date" means, with respect to any re15 quirement of a final rule described in subsection (b), 

16 the date by which any State, local, or tribal govern17 ment or other person is first required to comply. 

18 (b) FINAL RULES DESCRIBED.-A final rule de19 scribed in this subsection is any final rule to address na20 tional emission standards for hazardous air pollutants 

21 (NESHAP) for brick and structural clay products manu22 facturing or clay ceramics manufacturing under section 

23 112 of the Clean Air Act (42 U.S.C. 7412), including24 (1) the final rule entitled "NESHAP for Brick 

25 and Structural Clay Products Manufacturing; and 

•S 839 IS 
111 


27895.080

3 

1 NESHAP for Clay Ceramics Manufacturing" pub2 lished at 80 Fed. Reg. 65469 (October 26, 2015); 

3 (2) the final rule entitled "NESHAP for Brick 

4 and Structural Clay Products Manufacturing; and 

5 NESHAP for Clay Ceramics Manufacturing: Correc6 tion" published at 80 Fed. Reg. 75817 (December 

7 4, 2015); and 

8 (3) any final rule that succeeds or amends the 

9 rule described in paragraph (1) or (2). 

10 (c) PERIOD DESCRIBED.-The time period described 

11 in this subsection is the period of days that12 (1) begins on the date that is 60 days after the 

13 day on which notice of promulgation of a final rule 

14 described in subsection (b) appears in the Federal 

15 Register; and 

16 (2) ends on the date on which judgment be17 comes final, and no longer subject to further appeal 

18 or review, in all actions (including actions that are 

19 filed pursuant to section 307 of the Clean Air Act 

20 (42 U.S.C. 7607))-

21 (A) that are filed during the 60 days de22 scribed in paragraph ( 1); and 

23 (B) that seek review of any aspect of such 

24 rule. 

0 

•S 839 IS 
112 


27895.081

AUTHENTICATE? 

U.S GOVERNMENT 

!Nf'ORMATION 

GPO 

115TH CONGRESS 

1ST SESSION S.l934 

To prevent catastrophic failure or shutdown of remote diesel power engines 

due to emission control devices, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 5, 2017 

II 

Mr. SuLLIVAN (fbr himself and Ms. MuRKOWSKI) introduced the following 

bill; which was read twice and referred to the Committee on Environment 

and Public Works 

A BILL 

To prevent catastrophic failure or shutdown of remote diesel 

power engines due to emission control devices, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Alaska Remote Gener5 a tor Reliability and Protection Act". 

6 SEC. 2. REVISION OF REGULATIONS REQUIRED. 

7 (a) IN GENERAL.-Not later than 1 year after the 

8 date of enactment of this Act, the Administrator of the 

9 Environmental Protection Agency shall revise section 
113 


27895.082

2 

60.4216(c) of title 40, Code of Federal Regulations (as 

2 in effect on the date of enactment of this Act), by striking 

3 ", except that for 2014 model year" and all that follows 

4 through "compared to engine-out emissions". 

5 (b) ELECTRICITY AND ENERGY RELIABILITY.-A re6 vision of section 60.4216 of title 40, Code of Federal Reg7 ulations, may require the installation of emission control 

8 devices only if, after consultation with the Secretary of 

9 Energy, the Administrator of the Environmental Protec1 0 tion Agency determines that such a requirement will not 

11 negatively affect electricity or energy reliability in any re12 mote area of the State of Alaska. 

0 

•S 1934 IS 
114 


27895.083

May 15,2017 

EPA Office of Policy Regulatory Reform 

Mail Code 1803A 

1200 Pennsylvania Avenue 

NW Washington DC, 20460 

Attention: Docket ID No. EPA-HQ-OA-2017-0190 

I~ 

Re: Marine Tier 3 engine PM emission control device requirement 

Regulatory Reform Task Force: 

The Alaska Energy Authority (AEA), on behalf of mral Alaska communities is hereby 

submitting comments pursuant to the above-referenced docket and Executive Order 

13777. The purpose of EO 13777 is to alleviate unnecessary regulatory burdens on the 

American people. The Alaska Energy Authority is the state's energy office and lead agency 

for statewide energy policy and program development. AEA's misston is to "reduce the 

cost of energy in Alaska." AEA supports energy infrastructure and provides technical 

assistance to over 195 remote, islanded-grid, rural Alaska communities. 

AEA respectfully requests that the EPA rescind the particulate matter (PM) emission 

control device requirement for marine Tier 3 engines used in prime power applications in 

rural areas of Alaska. It is well known that PM emissions create health risks, and EPA's 

actions have effectively reduced PM emissions under the NSPS rule. However, the 

emission control device requirement (related to Tier 3 marine engines) is ineffective and 

burdensome in rural Alaska. 

Since 2007, AEA has worked with the Alaska Department of Environmental Conservation 

(DEC) to submit comments and provide documentation to support EPA's rulemaking 

applicable to remote areas of Alaska under 40 CFR 60, Subpart TIII (NSPS) and 40 CPR 

63, Subpart ZZZZ (RICE NESHAP). The costs of bringing a certified technician to a 

remote Alaska village to repair or maintain an emission control device far outweighs the 

benefit in PM emissions reduction. New marine Tier 3 engines are significantly cleaner 

than marine Tier 2 and nonroad Tier 3 engines. Requiring a PM device to be added to a marine Tier 3 engine in a remote setting imposes an unnecessary burden on the residents 

of mral Alaska, including many tribal entities. 

40 CFR 60.4216 of the final NSPS IIII rule, published June 28,2011, permits "remote areas of Alaska" to install marine engines certified to 40 CPR 94 or 40 CFR 1042. 

However, 2014 model year and later engines that do not meet Tier 4 PM standards must 

install a PM emission control device that achieves emission reductions of 85% compared 

to engine-out emissions. Emissions standards for marine Tier 3 engines were not finalized 

in 2007 when the Alaska Alternative Implementation Plan was developed. It is significant 

to note that once EPA finalized the manne Tier 3 standards, it became apparent that 

marine Tier 3 engines do not warrant additional PM emissions reduction. 

813 We~: No11hem L<ghts tlou1evard Anchorage. Al<1sk.t 99503 T 907 771.3000 Tolt FrH(Alaska OrUy) 898.300.8534 F 907 771.3044 
115 


27895.084

Docket ID No. EPA-HQ-OA-2017-0190 

May 12,2017 

Page2of2 

The number of diesel engines operating in remote communities of Alaska is significantly 

fewer than that in U.S. urban areas. In many cases, the only diesel engine running in an 

area encom2assing hundreds of square miles is a single power plant engine. The 

population density in rural areas is significantly less than one resident per square mile. 

EPA has previously recognized the unique circumstances of rural.Alaska and provided 

needed regulatory relief and this request is complementary to, and consistent w-ith those 

previous requests, which have been appreciatively granted. 

AEA, again, respectfully requests that EPA rescind the emission control device 

requirement for new marine Tier 3 engines used in prime power applications in remote 

areas of Alaska. 

For additional information, please contact David Lockard P.E. at (907) 771-3062. 

Michael E. Lamb, CPA, CGFM, CGM.A. 

Executive Director 

cc: Senator Lisa Murkowski 

Senator Dan Sullivan 

Congressman Don Young 

Governor Bill Walker 

Commissioner Chris Hladick, State of Alaska, DCCED 

Commissioner Larry Hartig, State of Alaska, DEC 

Commissioner Joel Niemeyer, Denali Commission 

1bomas Turner, Environmental Program Manager, State of Alaska, DEC 
116 


27895.089

November 13, 2017 

The Honorable Shelley Moore Capito 

Chair 

Subcommittee on Clean Air and Nuclear Safety 

Committee on Environment and Public Works 

Dirksen Senate Office Building, SD-41 0 

Washington, DC 20510 

The Honorable Sheldon Whitehouse 

Ranking Member 

Subcommittee on Clean Air and Nuclear Safety 

Committee on Environment and Public Works 

Dirksen Senate Office Building, SD-456 

Washington, DC 20510 

Dear Chairwoman Capito & Ranking Member Whitehouse: 

The undersigned organizations respectfully thank the Subcommittee on Clean Air and 

Nuclear Safety for its consideration ofS. 203, the "Recognizing the Protection of 

Motorsports Act of201 7" (RPM Act). As representatives of race sanctioning bodies, 

motorsports participants, and companies that manufacture, sell and install race parts, 

we ask for your assistance in providing certainty to the racing community and the 

thousands of people who work in the industry. 

The Clean Air Act (CAA) of 1970 established authority for the U.S. Environmental 

Protection Agency (EPA) to regulate motor vehicles used on the highways and prevent 

modifications that would take those vehicles out-of-compliance with emission 

regulations. However, Congress did not intend for the law to apply to race vehicles. 

In 2015, the EPA included clarifying language within the proposed rule for greenhouse gas 

emissions from trucks and buses, stating that it is illegal to modify the emissions system of a 

motor vehicle out of its certified configuration even if it is converted exclusively for race use. 

This interpretation was inconsistent with 45 years of previous agency policy, practice and 

industry understanding of the law as it applies to dedicated race vehicles. 

The EPA withdrew the clarification language from the final greenhouse gas rule, although 

the agency noted that it stands by its interpretation that the Clean Air Act does not permit 

performance modifications to race vehicles converted from a motor vehicle. Consequently, 

any business that makes or supplies the parts and services that modify the emissions system 

of these race vehicles is subject to EPA enforcement. 

The RPM Act provides clarity to industry and the racing community that the Clean Air Act 

allows motor vehicles to be converted into dedicated race vehicles and that such conversions 

are not an act of tampering. The bill protects tens of thousands of jobs and racers' ability to 

purchase the parts and equipment that enable them to compete. It also protects an American 

tradition. 
117 


27895.090

-2-

If you have any questions, please feel free to contact Stuart Gosswein, SEMA's Sr. Director, 

Federal Government Affairs at (202) 777-1220 or stuartg@sema.org. 

Sincerely, 

American Motorcyclist Association (AMA) 

Auto Care Association (Auto Care) 

Automotive Warehouse Distributors Association (A WDA) 

California Automotive Wholesalers Association (CAW A) 

Harley-Davidson Motor Company (Harley) 

International Hot Rod Association (IHRA) 

LKQ Corporation (LKQ Corp) 

Motor and Equipment Manufacturers Association (MEMA) 

Motorcycle Industry Council (MIC) 

Motorcycle Riders Foundation (MRF) 

North American Trailer Dealers Association (NATDA) 

National Association of Trailer Manufacturers (NATM) 

Off-Road Business Association (ORBA) 

Service Station Dealers of America and Allied Trades (SSDA-AT) 

Specialty Equipment Market Association (SEMA) 

Tire Industry Association (TIA) 

1317 F Street, NW Suite 500 Washington, DC 20004 
118 


27895.091

November 14'\ 2017 

RE: Test Lab Capacity and Future Backlogs Impacting Wood Heaters 

To Whomever It May Concern, 

This letter serves as confirmation that OMNI-Test Laboratories (OMNI) has the capacity to accommodate 

the test methods prescribed by the Environmental Protection Agency (EPA) for its New Source 

Performance Standards (NSPS), which address appliances such as: "New Residential Wood Heaters," 

"New Residential Hydronic Heaters," and "Forced-Air Furnaces." This letter also conveys the current (and 

upcoming) issues that our Lab, as well as many others, is( are) currently experiencing, as well as examples 

of ways in which certain aspects of the testing process can lead to significant delays that can have a 

significant impact on an appliance manufacturers' ability to bring their product to North American markets. 

OMNI has two standard-sized active testing stands for conducting emissions tests on Wood and Pellet 

Stoves, as well as a single (larger) testing stand for products with wider dimensions, such as Wood Furnaces 

and Hydronic Heaters. With a total of3 active stands dedicated to EPA emissions testing, as well as a 4"' 

stand that can be converted (if necessary) for active use, OMNI can be considered the largest accredited 

"Wood Heater Test Lab" approved by the EPA in North America. 

OMNI representatives have estimated the average amount of time that it can take for one of our qualified 

Technicians to complete testing for each type of appliance. We've estimated that, on average, the physical 

testing portion of the Pellet Stove test method takes approximately one full day to complete. It was also 

estimated that the other "heater" test methods, such as those for Wood Stoves, Hydronic Heaters, and 

Forced-Air Furnaces, can take approximately one full work week to complete the physical testing (pending 

firebox sizes, additional options, etc., that could add to this time). These estimates are based on completion 

of the test method without any non-compliances or deficiencies. 

In the past 12 months, OMNI has tested 14 Wood Heaters. Of those 14 units, there was a single appliance 

that did not pass the first run of the certification test series. The manufacturer was notified, and they 

requested the Wood Heater to be sent back to their facility to adjust the design and to continue their research 

and development (R&D) before sending it back for certification testing. 

Considering the current state of the industry, we estimate that there will be hundreds of Wood Heaters that 

will need to be tested and certified before May 2020. This is taking into account both units that still need 

testing and expected release of new units in the coming years. As was experienced during the initial "Step 

1" of the NSPS, which took effect in 2015, we anticipate a similar rush of applications from manufacturers 

to reserve testing space in the coming months. To prevent massive delays, the manufacturers must schedule 

projects months in advance. However, at times, some manufacturers decide to cancel a project that has 

already been planned and scheduled. This decision seems to arise when a manufacturer's R&D work 

extends past their own completion timelines. OMNI strives to maintain a dynamic and flexible Test 

Schedule. Unfortunately, this type of issue can dramatically affect our ability to maintain that flexibility. 

Other scheduling limitations can occur when an appliance fails to meet specific parameters in the test 

methods, [at times] midway through a test series, resulting in runs that were once deemed "compliant" 

(from an individual standpoint), having to then be considered "invalid" when taking the entire series into 

Filename: OTL Business Letter Template; Date Pril!ied: November 14. 2017 
119 


27895.092

Page2 of2 

consideration. Factors that contribute to failures during testing can (but are not limited to) the following: 

Equipment malfunctions, stoves burning too hot during a cycle that is supposed to be cooler, etc. 

Regardless of whether a manufacturer decides to cancel (or push out) their requested test stand time, or 

whether there is a test failure that would provide an opportunity for OMNI to begin on a separate 

manufacturer's appliance (reducing delay time), we cannot do so based on the EPA CFR's requirement that 

the Lab give a 30 days' notice before conducting tests. It is understood that the requirement is intended to 

give EPA representatives the opportunity to observe testing in-person if they so choose. 

Although it is possible to increase a Lab's capacity to conduct EPA certification tests, should a "backlog" 

develop due to a sudden increase in demand, the lead-time and additional resources needed to implement 

this increase (for what may only be a limited time; essentially pushing Labs into a risky and unfruitful longterm investment) is significant. This does not include the long training time and resources needed to 

adequately qualifY additional stafito address the upcoming logjam. We believe that these concerns are not 

unique to OMNI and are being experienced by the other EPA-approved Test Labs. We are proposing a 

cooperative effort between EPA and the Labs to help prevent another event resulting in significant delays 

for the manufacturers. 

Thank you for your time and consideration. 

Sincerely, 

Alex 

~~ Tiegs '1/ 

President / 

OMNI-Test Laboratories, Inc. 

AT/sb 

Mailing: Post Office Box 301367 • 97294 

Street: 13327 NE Airport Way • 97230 

Portland, Oregon • USA 

OMNI-Test Laboratories, Inc. 

Product Testing & Certification 

www.omni-test.com 

Filename: EPA Cooperation Letter- Signed; Date Printed: November 14, 2017 

Phone: 

Fax: 

Email: 

(503) 643-3788 

(503) 643-3799 

atiegs@omni-test.com 
120 


27895.093

1901 NORTH MOORE STREET, SUITE 600 

ARLINGTON, VA 22209 USA 

P: {703} 522-0086 • F: {703} 522-0548 

hpbamait@hpba.org • www.hpbo.org 

November 28, 2017 

The Honorable John Barrasso 

Chairman 

Committee on Environment and Public Works 

U.S. Senate 

The Honorable Shelley Moore Capito 

Chairman 

Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

The Honorable Thomas Carper 

Ranking Member 

Committee on Environment and Public Works 

U.S. Senate 

The Honorable Sheldon Whitehouse 

Ranking Member 

Committee on Environment and Public Works 

Subcommittee on Clean Air and Nuclear Safety 

Dear Chairman Barrasso, Ranking Member Carper, Chairwoman Capito, and Ranking Member 

Whitehouse: 

As the trade association representing manufacturers, retailers, distributors, and servicers of wood and 

pellet stoves and inserts, hydronic heaters, and wood furnaces, in addition to other sectors of the 

hearth, patio, and barbecue industries, we are writing to express our ardent support for the legislation 

S. 1857, which was reviewed by the Subcommittee on Clean Air and Nuclear Safety on November 14, 

2017. This letter also responds to some of the allegations made during the hearing that we know to be 

false. 

HPBA and its members have been long-time champions of woodburning product innovation through 

more efficient and cleaner burning technology. Biomass, such as wood, is an important renewable 

home heating option. HPBA takes every opportunity to ensure the general public has a wide variety of 

woodburning appliances available. 

The New Source Performance Standards (NSPS) rule for new residential wood and pellet stoves, 

hydronic heaters, and wood furnaces was finalized in 2015 and has two sets of standards. 

Manufacturers already have met the Step 1 standards. However, to meet Step 2 standards, 

manufacturers must research and develop new technologies, test them for durability, send them to an 

EPA-approved test lab for testing and approval, and then finally have their products certified by the 

EPA. To have these products in stores by the current Step 2 May 2020 deadline, the typical business 

cycle necessitates at least two years, meaning manufacturers currently need to complete the full 

process by the summer of 2018 to ensure they have Step 2-compliant products ready to be pitched to 

and purchased by retailers for the 2019-2020 heating season. Retailers are not going to purchase 

products that can't be sold in the next heating season, since it can sometimes take five years to sell a 

wood heater. 

S. 1857 would extend the effective date of Step 2 of the EPA's NSPS by three years, from May 15, 

2020 to May 15, 2023. Without this extension, at least 6,500 manufacturing jobs in mostly rural 

communities across the country are at risk. Many manufacturers currently have few or no products that 

can meet the Step 2 standard, and some may never be able to meet the standard. For those who can, 

Step 2-compliant wood heaters will be more expensive and less affordable for middle class families 

looking for a reliable and inexpensive heating option. More people will keep their older, dirtier, nonEPA-certified products due to the increase in prices, which would delay improvements in air quality. 
121 


27895.094

The underlying NSPS is not flexible and does not have a lengthy transition period. 

In Mr. Walke's written statement, he states that "the underlying standards are already flexible and have 

a lengthy transition period."' These standards are prescribed and are not flexible, unless EPA grants a 

manufacturer's request to meet an alternative requirement. However, it is unclear to the public which 

products have been granted special dispensations, reducing transparency for consumers looking for 

clean burning products tested to the same standard. Nor does the rule provide for lengthy transition 

periods. Many manufacturers, especially those who make furnaces, had to scramble to certify products 

to meet the Step 1 standards as recently as [large WAF effective date]. Those manufacturers must 

now immediately refocus on trying to meet the considerably more stringent Step 2 standards in time. 

Many manufacturers may never get there at all, let alone on time. 

Delaying the effective date of Step 2 of the NSPS will enable more innovation, cleaner burning 

products, and products that are affordable and easy to use by consumers. 

In Mr. Walke's written statement, he states that '1he bill will reward laggards in the industry by allowing 

them to avoid compliance with standards that most manufacturers currently meet."2 Extension ofthe 

Step 2 effective date will not remove the Step 1 standards that are currently in place. All manufacturers 

of wood heaters today are in compliance with Step 1, but most manufacturers do not currently meet 

Step 2. Extending the effective date of Step 2 will allow manufacturers to finish research and 

development and product testing without having to rush through the R&D stage. Without more time, 

consumers will not have many affordable, clean-burning heating options. Rushing through product 

development to meet the 2020 standards will only create more expensive, less user-friendly products 

that will need more frequent repairs to sensitive emissions controls components. More time allows 

manufacturers to develop more affordable, elegant solutions for meeting Step 2. 

The legislation (5.1857) would help improve air quality and health in communities where these 

products are used most. 

In Mr. Walke's written statement, he states that "this bill and its resulting delays would harm air quality 

and health in the communities where these devices are most used."3 Delaying this rule will enable 

manufacturers to develop affordable, clean burning and efficient wood heaters that consumers will want 

to buy. If Step 2 goes into effect as is, product offerings will dip significantly, the prices of products will 

increase, and so it will become more difficult (if not impossible) for consumers in mostly rural 

communities to upgrade their existing appliance to a newer, EPA-certified model. Contrary to Mr. 

Walke's assertion, making it more difficult for consumers to buy efficient products will have the perverse 

effect of delaying air quality improvements. Most of the emissions reductions in the U.S. from wood 

heat come from changing out older, non-EPA-certified stoves and replacing them with cleaner and 

more efficient heating options. For example, Libby, MT, the town had 1,130 older woodstoves replaced 

1 Legislative Hearing on S. 1857, S. 203, S. 839, and S. 1934: Hearing before the Subcommittee on Clean Air and 

Nuclear Safety of the Senate Committee on Environment and Public Works, 1151

" Cong. 17 (2017) (testimony of 

John Walke). Retrieved from https://www.epw.senate.gov/public/ cache/files/1/0/1 05c5824-6dcf-42c5-b135-

f3ae0efeb146/5783BAB97CD92A72B94BCDC5E690D6C9.walke-testimony-11.14.17.pdf 

2 Legislative Hearing on S. 1857, S. 203, S. 839, and S. 1934: Hearing before the Subcommittee on Clean Air and 

Nuclear Safety of the Senate Committee on Environment and Public Works, 115'" Cong. 17 (2017) (testimony of 

John Walke). Retrieved from https:/lwww.epw.senate.gov/public/ cache/files/1/0/105c5824-6dcf-42c5-b135-

f3ae0efeb146/57B3BAB97CD92A72B94BCDC5E690D6C9.walke-testimony-11.14.17 .pdf 3 Legislative Hearing on S. 1857, S. 203, S. 839, and S. 1934: Hearing before the Subcommittee on Clean Air and 

Nuclear Safety of the Senate Committee on Environment and Public Works, 115'" Cong. 17 (2017) (testimony of 

John Walke). Retrieved from https:/!www.epw.senate.gov/publicl cachelfiles/1/0/105c5824-6dcf-42c5-b135-

f3ae0efeb146157B3BAB97CD92A72894BCDC5E690D6C9.walke-testimony-11.14.17 .pdf 

2 
122 


27895.095

with newer EPA-certified stoves. As a result, indoor air quality improved by 70 percent while outdoor 

air quality improved by 30 percent. 4 

There are very few wood heaters that already meet the Step 2 standards. 

In Mr. Walke's written statement, he states that "there is a long list of devices that already meet these 

Step 2 standards, and Congress should not reward the laggards."5 If one looks at the list of currently 

EPA-certified stoves, which is linked to in Mr. Walke's written statement, you see a list of about 550 

wood and pellet stoves. 6 These are the stoves that meet Step 1, not Step 2. To determine which of 

these stoves meet Step 2, the stove's emissions limit must be less than or equal to 2.0 g/hr (if tested 

with crib wood) and it also must have a carbon monoxide (CO) measurement. Of the 550 stoves that 

meet Step 1, only 46 stoves (20 woodstoves and 26 pellet stoves)- fewer than 10%- meet these 

criteria. For hydronic heaters, the number of models that comply with Step 2 are even more dramatic. 

As of June 2017, there are 125 hydronic heater models that meet Step 1. 7 Of that number, we know of 

only seven which meet Step 2. For wood furnaces (also known as forced-air furnaces), only 15 models 

meet Step 1. Of those 15 models, only one model meets Step 2- even then, the model does not meet 

the test method prescribed in the NSPS; rather it was granted an alternative test method in order to do 

so• 

HPBA supports the NSPS Step 1 standards and does not support a full repeal of the NSPS. 

In Mr. Walke's written statement, he states that HPBA, along with the Northeast States for Coordinated 

Air Use Management (NESCAUM), "wrote to members of the U.S. House of Representatives about 

H.R. 694, a companion bill in the House. These groups voiced support for compliance by 2020."9 H.R. 

694 is not the companion bill to S. 1857, the legislation discussed during the November 14,2017 

hearing. The companion bill to S. 1857 is H.R. 453. 10 The bill Mr. Walke referred to, H.R. 694, is the 

legislation in the House which would repeal the 2015 NSPS rule in its entirety, meaning that most 

appliance categories {i.e., anything that was not subject to the 1988 rule) would not be federally 

regulated. 11 We do not support H.R. 694, which was expressed in a joint letter with NESCAUM sent to 

the U.S. House of Representatives on May 8, 2017. The letter generally supports the NSPS and 

opposes a full repeal of the standards. It cannot be said that the letter shows "strong support for 

compliance by 2020," as stated by Mr. Walke. The 2020 deadline is never mentioned in that letter, 

which is attached as part of this statement. 

4 Hearth, Patio & Barbecue Association. (2008). Preliminary Report: Clearing the Smoke: The Woodstove 

Changeout in Libby, Montana. Retrieved from 

https:llwww.hpba.orgiPortalsi261DocumentsiGovernment%20Affairs1Libby Report-Final.pdf?ver-2017-06-13-

082448-233 

Legislative Hearing on S. 1857, S. 203, S. 839, and S. 1934: Hearing before the Subcommittee on Clean Air and 

Nuclear Safety of the Senate Committee on Environment and Public Works, 115'" Con g. 18 (2017) (testimony of 

John Walke). Retrieved from https://www.epw.senate.govlpublic/ cachelfilesl110/105c5824-6dcf-42c5-b135-

f3ae0efeb146/57B3BAB97CD92A72894BCDC5E690D6C9.walke-testimony-11.14.17.pdf 

6 See U.S. EPA Compliance, List of EPA Certified Wood Stoves. (October 2017). Retrieved from 

https://www.epa.govlcompliancellist-epa-certified-wood-stoves 

1 See U.S. EPA Compliance, List of EPA Certified Hydronic Heaters. (June 2017). Retrieved from 

https://www.epa.gov/compliancellist-epa-certified-hydronic-heaters 

8 See U.S. EPA Compliance, List of EPA Certified Forced-Air Furnaces. (October 2017). Retrieved from 

https://www.epa.gov/compliance/list-epa-certified-forced-air-furnaces 

9 Legislative Hearing on S. 1857, S. 203, S. 839, and S. 1934: Hearing before the Subcommittee on Clean Air and 

Nuclear Safety of the Senate Committee on Environment and Public Works, 1151" Cong. 18 (2017) (testimony of 

John Walke). Retrieved from https:l/www.epw.senate.qovlpublic/ cachelfilesl1101105c5824-6dcf-42c5-b135-

f3ae0efeb14615783BAB97CD92A72894BCDC5E690D6C9.walke-testimony-11.14.17.pdf 

10 S. 1857, 1151h Cong. (2017). Related bills. Accessed November 27, 2017. https://www.congress.gov/bill/115thcongress/senate-billl1857/related-bills 

11 Stop EPA Overregulation of Rural Americans Act of 2017. H.R. 694, 1151

" Cong. (2017). 

3 
123 


27895.096

Additional Points 

With only five EPA-approved test labs, the industry faces a logjam getting products tested by EPAapproved labs. As the deadline gets closer, hundreds of appliances will need EPA testing and 

certification in a very short timeframe. There is not enough capacity to get through the process in time. 

A letter from OMNI-Test Laboratories, arguably the largest EPA-accredited test lab for wood heaters in 

the U.S., is attached, attesting to the upcoming test lab logjam. Once a valid test by an approved lab is 

complete and a manufacturer receives a certificate of conformity, EPA must review the certification 

application, which can take more than 60 days if there are questions. The surge in products needing 

testing will further slow down the process to final EPA certification. As a result, not all compliant 

products will be available on the effective date of Step 2, May 15, 2020. 

There is no sell-through provision to allow Step 1 products already at retailers on May 15, 2020 to be 

sold while EPA approves new Step 2 products. The effects would be devastating to small businesses. 

Many companies, both large and small, already are laying off workers to divert capital necessary to 

fund the expensive research and development costs. With research and development costs ranging 

from $200,000 to $500,000 per product (plus an additional $20,000 fee per official laboratory test), 

companies are working to raise the capital needed to meet the new regulations with small companies 

being hit the hardest. For large companies that may have as many as 30 products, this investment 

could be more than $10 million. For virtually all manufacturers in the industry, the only viable means of 

getting the funds needed for this type of investment is to increase the price of products. For smaller 

companies, it is even more difficult to make these up-front investments in a short period of time since 

they don't have as many products to spread across this cost. As a result, many companies will have to 

contemplate downsizing both staff and product offerings or may go out of business, further limiting the 

choices available to consumers. 

Rural communities would be particularly hard hit. Many impacted businesses were founded in rural 

communities to meet home heating and business needs. If small businesses close, those communities 

will lose jobs. In addition, rural communities are primary users ofwoodburning appliances. The end 

result for areas where our members have operated for generations would be fewer and more expensive 

products, stunted improvements in air quality, and increased unemployment. 

Conclusion 

An extension not only provides manufacturers with equal opportunity and necessary access to testing 

labs, but also would ensure stability in the retailer market, an important staple to healthy local 

economies. Additional time will allow for the continued development of more efficient and reliable 

woodburning hydronic heaters, wood and pellet stoves, and wood furnaces for American homes. 

Thank you for your consideration of S. 1857 and the testimony of Paul Williams, Vice President of 

Business Intelligence at U.S. Stove Company. We look forward to further discussion and hope to be a 

resource to you and your staff in the future. 

Sincerely, 

~til! A#~ Jack Goldman 

President & CEO 

Hearth, Patio & Barbecue Association 

Attachments: HPBA and NESCAUM May 8, 2017 Letter to U.S. House of Representatives 

Letter from OMNI-Test Laboratories Regarding Test Lab Capacity 

4 
124 


27895.097

ATTACHMENT 1 

HPBA and NESCAUM May 8, 2017 Letter to U.S. House of Representatives 

5 
125 


27895.098

MayS, 2017 

The Honorable Paul Ryan 

Speaker of the House 

U.S. House of Representatives 

The Honorable Greg Walden 

Chairman 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable john Shimkus 

Chairman 

Committee on Energy & Commerce 

Subcommittee on Environment 

U.S. House of Representatives 

NESCAUM 

The Honorable Nancy Pelosi 

Minority Leader 

U.S. House of Representatives 

The Honorable Frank Pallone 

Ranking Member 

Committee on Energy & Commerce 

U.S. House of Representatives 

The Honorable Paul Tonko 

Ranking Member 

Committee on Energy & Commerce 

Subcommittee on Environment 

U.S. House of Representatives 

Dear Speaker Ryan, Minority Leader Pelosi, Chairman Walden, Ranking Member Pallone, 

Chairman Shimkus, and Ranking Member Tonko: 

The Northeast States for Coordinated Air Use Management (NESCAUM) and the Hearth, 

Patio & Barbecue Association (HPBA) are writing to express our joint concern with H.R. 

694 that would rescind the 2015 New Source Performance Standards (NSPS) for 

residential wood heating devices promulgated by the U.S. Environmental Agency (EPA). 

Our associations represent state environmental agencies and the wood heating appliance 

manufacturers. 

The federal Clean Air Act requires EPA to review and update the NSPS, if appropriate, at 

least every 8 years, yet the original Residential Wood Heater NSPS was not revisited for 

almost 30 years after its inception in 1988. Since that time, the universe of residential 

wood burning sources has greatly expanded. Under the 1988 NSPS, many categories of 

devices, including outdoor wood boilers, pellet stoves, single burn rate stoves, and wood 

furnaces, were not subject to regulation. The 2015 NSPS expands the scope of the 

regulation to include these product categories and recognizes that the technology of 

previously-covered devices has improved in regards to reduced emissions and increased 

efficiencies. 

The 2015 NSPS program reflects today's modern wood heating devices that provide 

important benefits to millions of Americans, especially those living in rural communities. 
126 


27895.099

The program fosters the market for wood, which is an important domestic source of 

heating fuel. It will save consumers money, many of whom are low-income households, by 

lowering fuel costs through increased appliance efficiency. Replacing non-EPA-certified 

stoves with today's modern stoves will reduce health risks from exposure to wood smoke,1 

but this can only be done if products are clean burning, fuel efficient, and affordable. 

Finally, this program will ensure continued innovation in U.S. manufacturing that will help 

keep domestic companies competitive in the solid fuel industry. 

In refining technologies over the years, many companies have invested significant 

resources to improve the performance of appliances. The 2015 NSPS is already fostering 

industrial innovation by North American wood burning equipment manufacturers and 

there are many devices currently available in the market that address the requirements of 

today's standards. Eliminating the NSPS will punish the companies that have invested in 

technology innovation and reward those who have not. 

Cleaner devices will generate greater public acceptance of wood fuels for heating. We have 

already seen that in the absence of modern technology requirements, a number of states 

and municipalities have acted on their own in response to citizen complaints to limit or ban 

the use of wood burning devices.2 Without an updated federal standard, the continuing 

sale of products conforming only to the 1988 version of the NSPS will potentially relegate 

the industry to an undesirable regulatory landscape where numerous state and local 

jurisdictions promulgate differing rules on what products can and cannot be sold. On the 

other hand, by fostering the creation of a diverse set of consumer choices for clean burning 

and efficient devices, manufacturers may have access to expanded market opportunities for 

their products. 

We urge you to oppose wholesale repeal of the 2015 residential wood heater NSPS. In 

doing so, you will promote public health protection, lower heating costs, help build markets 

for locally-sourced domestic fuels and devices, and support North American manufacturers 

in a competitive international market. Representatives from our associations can provide 

further information upon request. 

Sincerely, 

0Pt£ll~ Jack Goldman, President & CEO 

Hearth, Patio & Barbecue Association (HPBA) 

1901 North Moore St, Suite 600 

Arlington, VA 22209 

/} :7/ ~;· v_#{ / /'~, 

Arthur Marin, Executive Director 

Northeast States for Coordinated Air 

Use Management (NESCAUM) 

89 South Street, Suite 602 

Boston, MA 02111 

1 See generally Curtis W. Noonan et al., Assessing the Impact of a Wood Stove Replacement Program on Air Quality and 

Children's Health, Health Effects Institute, Rep. No. 162 (December 2011), available at 

httns://www.healtheffects.org/publlcations 

z This includes, but is not limited to, parts of: Alaska, California, Colorado, Michigan, Oregon, Washington, Wisconsin, 

Vermont See U.S. EPA, Ordinances and Regulations for Wood Burning Appliances (Accessed February 21, 2017], available 

at https: //www.epa.gov /burn wise I ordinances~and-regulations~woodMburningMappliances. 
127 


27895.100

ATTACHMENT 2 

Letter from OMNI-Test Laboratories Regarding Test Lab Capacity 

6 
128 


27895.101

November I4'h, 2017 

RE: Test Lab Capacity and Future Backlogs Impacting Wood Heaters 

To Whomever It May Concern, 

This letter serves as confinnation that OMNI-Test Laboratories (OMNI) has the capacity to accommodate 

the test methods prescribed by the Enviromnental Protection Agency (EPA) for its New Source 

Perfonnance Standards (NSPS), which address appliances such as: "New Residential Wood Heaters," 

"New Residential Hydronic Heaters," and "Forced-Air Furnaces." This letter also conveys the current (and 

upcoming) issues that our Lab, as well as many others, is( are) currently experiencing, as well as examples 

of ways in which certain aspects of the testing process can lead to significant delays that can have a 

significant impact on an appliance manufacturers' ability to bring their product to North American markets. 

OMNI has two standard-sized active testing stands for conducting emissions tests on Wood and Pellet 

Stoves, as well as a single (larger) testing stand for products with wider dimensions, such as Wood Furnaces 

and Hydronic Heaters. With a total of 3 active stands dedicated to EPA emissions testing, as well as a 4th 

stand that can be converted (if necessary) for active use, OMNI can be considered the largest accredited 

"Wood Heater Test Lab" approved by the EPA in North America. 

OMNI representatives have estimated the average amount of time that it can take for one of our qualified 

Technicians to complete testing for each type of appliance. We've estimated that, on average, the physical 

testing portion of the Pellet Stove test method takes approximately one full day to complete. It was also 

estimated that the other "heater" test methods, such as those for Wood Stoves, Hydronic Heaters, and 

Forced-Air Furnaces, can take approximately one full work week to complete the physical testing (pending 

firebox sizes, additional options, etc., that could add to this time). These estimates are based on completion 

of the test method without any non-compliances or deficiencies. 

In the past 12 months, OMNI has tested 14 Wood Heaters. Of those 14 units, there was a single appliance 

that did not pass the first run of the certification test series. The manufacturer was notified, and they 

requested the Wood Heater to be sent back to their facility to adjust the design and to continue their research 

and development (R&D) before sending it back for certification testing. 

Considering the current state of the industry, we estimate that there will be hundreds of Wood Heaters that 

will need to be tested and certified before May 2020. This is taking into account both units that still need 

testing and expected release of new units in the coming years. As was experienced during the initial "Step 

1" of the NSPS, which took effect in 2015, we anticipate a similar rush of applications from manufacturers 

to reserve testing space in the coming months. To prevent massive delays, the manufacturers must schedule 

projects months in advance. However, at times, some manufacturers decide to cancel a project that has 

already been planned and scheduled. This decision seems to arise when a manufacturer's R&D work 

extends past their own completion timelines. OMNI strives to maintain a dynamic and flexible Test 

Schedule. Unfortunately, this type of issue can dramatically affect our ability to maintain that flexibility. 

Other scheduling limitations can occur when an appliance fails to meet specific parameters in the test 

methods, [at times] midway through a test series, resulting in runs that were once deemed "compliant" 

(from an individual standpoint), having to then be considered "invalid" when taking the entire series into 

FlleMme: OTL Bw:im:s.v Letter Template: Date Printed. Nowmber 14. 1017 
129 


27895.102

Page2 of2 

consideration. Factors that contribute to failures during testing can (but are not limited to) the following: 

Equipment malfunctions, stoves burning too hot during a cycle that is supposed to be cooler, etc. 

Regardless of whether a manufacturer decides to cancel (or push out) their requested test stand time, or 

whether there is a test failure that would provide an opportunity for OMNI to begin on a separate 

manufacturer's appliance (reducing delay time), we cannot do so based on the EPA CFR's requirement that 

the Lab give a 30 days' notice before conducting tests. It is understood that the requirement is intended to 

give EPA representatives the opportunity to observe testing in-person if they so choose. 

Although it is possible to increase a Lab's capacity to conduct EPA certification tests, should a "backlog" 

develop due to a sudden increase in demand, the lead-time and additional resources needed to implement 

this increase (for what may only be a limited time; essentially pushing Labs into a risky and unfruitful longterm investment) is significant. This does not include the long training time and resources needed to 

adequately qualifY additional staff to address the upcoming logjam. We believe that these concerns are not 

unique to OMNI and are being experienced by the other EPA-approved Test Labs. We are proposing a 

cooperative effort between EPA and the Labs to help prevent another event resulting in significant delays 

for the manufacturers. 

Thank you for your time and consideration. 

Sincerely, 

Alex 

0\l~ Tiegs ~} President / 

OMNI-Test Laboratories, Inc. 

AT/sb 

Mailing: Post Office Box 301367 • 97294 

Street: 13327 NE Airport Way • 97230 

Portland. Oregon • USA 

OMNI-Test Laboratories, Inc. 

Product Testing & Certification 

www.omnHestcom 

Filename: EPA Coopera1ion l..etler- S1gned; Dale Printed: November 14, 2017 

Phone: 

Fax: 

Email: 

(503) 643-3788 

(503) 643-3799 

atiegs@omni-test.com 
130 


27895.103

The Honorable Senator Dan Sullivan 

702 Hart Senate Office Building 

Washington DC 20510 

Re: Negative Effect ofTier 3 emissions requirements on diesel engines 

Dear Senator Sullivan, 

122 t' Avenue 

Fairbanks. AK 9970 I 

907--152-8251 

www. tananachiefiorg 

With this letter we would like to highlight some of the challenges rural communities in interior Alaska 

are facing with regard to implementing the requirements put forth by the EPA RICE rules and the effect 

of those requirements on our engines in Rural Alaska, which provide 100% of the electricity in most of 

our communities. 

Cost: Most importantly the cost of Diesel generators that many of our communities use has nearly 

doubled due to the regulations that the EPA has imposed. Attached in Appendix 1. Is an invoice from 

Alaska Diesel Electric in Anchorage showing the cost of a standard EPA Certified Tier 3 marine engine, 

which the marine industry is allowed to use for prime power on vessels but which rural villages cannot 

legal install without a Diesel Particulate Filter (DPF) due to requirements in 40 CFR 60.4216. 

Cost of 99kW Diesel generator with accessories Before Diesel Particulate Filter: $39,681 

Cost of same 99kW Diesel generator with Diesel Particulate Filter: 

% increase in cost to bring into current EPA Regulations: 66% INCREASE IN COST 

Cost on the used market: 

EPA requirements have also had a negative impact on the used market for diesel gensets. Recently the 

community of Chalkyitsik put out a bid for 2 new or low hour 99kW generator JD4045AFM85 

manufactured before MY 2014 to be in compliance with 40 CFR 60.4216. The same genset package 

without a DPF that could have been purchased brand new for $39,681 was unavailable from 4 vendors 

who searched across the country. The one vendor who was able to supply these engines priced them at 

$67, 750/ea. (Appendix 2.). This represents a 700,1; increase in cost. 

Maintenance: The additional cost of maintaining a Diesel Particulate Filter is well known across the 

industry. If anything goes wrong with the Diesel Particulate Filter the generator shuts down. Only a 

factory trained service technician with the proper codes can fix the problem. In Rural Alaska these 

technicians are at least 1-2 days out and extremely expensive. 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. 

Alaska Diesel Electric salesman Kurt Torn berg relayed a story from Dutch Harbor's powerhouse, which 

had a DPF unit installed on one of their engines. A technician from AK Diesel Electric had to fly to Dutch 

Harbor (2 hour flight, $1000 r/t airline ticket) to clear codes on the DPF with the factory software then 
131 


27895.104

/22 (.t Avenue 

Vairbanks. AK 99701 

907--152-8151 

wlrW tananachiet ... v. org 

return without performing any additional work. Had bad weather moved in, the technician could have 

easily been there for 2+ days at a cost of $130/hr. 

We will continue to collect and relay stories of hardship and increased cost that the EPA regulations are 

incurring on rural Alaskan communities and we appreciate the Senator's willingness to sponsorS. 1394 

which seeks to address this issue in small rural communities. 

Thank you, 

Dave Messier 

Rural Energy Coordinator 

Tanana Chiefs Conference 

122 1" Ave Suite 600 

Fairbanks, AK 99701 
132 


27895.105

-D- NORTHERN LIGHTS 

Cost of a 99kW genset 

without DPF 

122/''Avenue 

hlirbanh . .-IK 99701 

9117--151-8151 

wu·w.tananachielion: 
133 


27895.106

Appendix 1. Quote from Alaska Diesel Electric With and Without EPA required DPF 

-D- NORTHERN LIGHTS 

MARINE GENERATOR QUOTE 

I 22 1'1 Avenue 

Fairbanks. AK 997111 

907-./52-8251 

www.lananachiefs. org 

17 201e 2:51PM 

TillS IS THE UPDATED VERSION AND IS COMPLIANT WITH REQUEST FROM FlOYDD. THERE IS NOT AN 

EXTENDEO RUN OIL PAN AVAILABLE FOR THIS MODEL 

• t- JD ~5 TFM 85 9@'nset. 68 ekW Prime. 1"1\a'ir\e pck~ bl!or 3 engine, -electronically goyemt'd 

• 1 JO 4045 AfM 85 ge-nse-l tO t&KW Prime, rnatine- ~@ted t1er 3 genset. etectron~caJiy go~ 

• Both generators mounted on skids wrth ISOlators 

• Both Gen-ends to h.:rt.te \IOkage regulators 3.3 VDC Dry Conbct Inputs 

• Both Genefilb'S to include PMGs 

• Both engines 110 h~ pre-instliled, pre-wired murphy powennew PV101..C with 40 e%1ension ham~s$. diapno.stic output connection 

• t2 V "'"'rat"V system lor both 110""'"" •. x. 18J0fltx 'tao~ for exhausts-is Gat Flange x4ftoatingfbnQQ-

• Shiplmg to F~s. AK ffn.li loeaaon il1 F.utanks T'SO. assume there will be equ~ ~ ., ofllioild the gense-ts from ;a truck 

• ?tease flduc» as an indep;.ond~t option b' each oenerator a fine Item for an extended seMce o# pan ltit to inc:re3se tme between oil 

d\angM to 3000 hOurs.. 1his MAY or MAY NOT be requested by the tribe during 1he fNI pureh.:tse but 'We 'NOuld ltke it to be ev.aluated as 

""optiOn 

• Plea~ indude your organiz.'ltion s information on the gen-sets WJIT3nty 

• Commisioning cf gener.at.Of pNformed by Eledric PoWM Constructors. If they an not chosen, commisionJng >Mill be performed 

byAiasU ~ Electric with .md ~ddiUon.aJ cost of $2500.00 

MWC13 M99Cl32S 

BASE MODEL PRICE 

BASIC PRICE INCLUDES THESE STAHDARD FEATIJRES: 

• .._avy duty engine blot*: w~ wet ~~nder liMI'S. 

• Spin-on ott filer. 

• Crankcase bruthef ftte.r system. 

• c.., etement air fitter 

WlW01800RPM _, 3PH Kt-fl Cooled SA.a3.'111~lf2 T~et3 

• Ffest\ water cooled QS.t iron e~st man~old I e~ t.¥tk and turi:!och.:ugcN. 

• Freshwater cooting system with keel cooler connections OR Mat t-Xeh3nger ec>c:klg with raw water pomp (as nOtEd in mode! 

d~s). 

• Primary water separator & se<.:Ondary hie! titter. 

• 12 vott standdrd ground marlne: Qr.ide eiectric31 system With i5 att~p battery Cl'lilrglng altem3tor. 

• Basic engine oo~ sys~ with generator·mo..mb!d step J start SWltches. 

• Stushless geMr.Jtor 

• Belt guam. 

•Steelbasebne . 

• Gf3y t!IIOmo! lnish. 

• Loodtostodal3ctOfY. 

• Opegttl(s .1nd pam. manuals. 

35521 
134 


27895.107

-D- NORTHERN LIGHTS 

MARINE GENERATOR QUOTE 

RAMPART VIllAGE POBOX29 

RAMPART AK 00676 

121 1'1 Avenue 

Fairbankv. AK 997()1 

9117-./52-8251 

www.tananachiets. org 

Jun6 201610:08AM 

THIS IS THE UPDATED VERSION AND IS COMPLIANT WITH REQUEST FROM FLOYDD. THERE IS NOT AN 

EXTENDED RUN OIL PAN AVAILABLE FOR THIS MODEL 

• 1- JO 4045 TFM 65von!i<ll. 6S ekW Prime, mom• joel- 11er 3 en9fle, e-.a11y gooemo<l 

• I JO -4045 AFM -85 gen!iE!t, 10 leKW Prime, fNifine jxk*'<l tier 3 genset, elee1ronic31ty governed 

• Both~ mounted on s.kids with isolators 

• Both Gen-endstohaw..,... ~3.3 VOC OryCont>ct InputS 

• 6oth Gent!r.JCIB tc include PMGs 

• 8oth enginM 110: hawc pt'@'-flst.lled, pre--w1red murphy p~ PVlO I~C with 40 extension h3mns di.-agnostie oocput connection 

• 12Vopo...rq-lorbo<hll0",.,. 

• <4x 18JOftex flange:far~x.twms.'s CatFlang:e.x.-4 ftootingffanve 

• Shi~ to f.wtanks. AK fin.allomton in Fail'banks TBO. assume 1hefe Will be equCXnent -3\lailabie 1.0 o~ 1tlt-gensets from .1 truck 

• Please ftdudt as an independent option for each generator a line Jtem for an utMded WfVice oi pan kit to incre.ase tine between oil 

changes to 3000 ~ 1his MAY or MAY NOT be requested by the tribe during the fNI ptRhastt but we would Mke it to be evalu:Hd 3S 

;m option 

• Ple.:tse lftdude your organiulion :s infDrnution on !be _gerM& w.ae'Qnty 

• Commisionine of gener.ltor petfonntocl by El~ Power Constructors. ff they ,.... not cbos~n. eommisianlnQ will M performed 

byAJa....,Diose!Beclric- :and>ddltionolcostof$2500.00 

SASE MODEL PRICE 

BASIC PRICE INCLUDES THESE STANDARD FEATURES: 

• Heavy Wty engine !:lode will\ wet CJ!iiQflin•"· 

• Spin-en oil-. • Crankcase llfNih« tAter" SJ$tlem. 

• Cwy e!efMnt air fih:er. 

• Ffesh w.tter cooled cast iron extuust m.:Jilifo4d I~~ bnlt and lJtt»ch~. 

• Freshwater COCling $)Stem with keel OClderconnedjcns OR heat exchanger eooiftg ~ r.JW water puffiC)(3S noted in moo.i 

des~~ 

• Ptimary wD!t separator&. seoond.3ry fuel fiitef, 

• 12 volt ~ani vround m:wintt grade el&drie.ll system With 75 amp bal:lr!ry charging aleematct. 

• B.JS.ic engine oontrof system -':th Qllnf!r.ll~r~ stop I st3tt swJichs, 

•SNshless~ . 

• 8eltguonl. 

•SteelboH-

• Gray en.amet Nlish, 

•LaadiHted .. fac:tcly 
135 


27895.108

-~~l 11d 11tl 

Chiefs 

(<)II ft. 'l"l'l1('t' 

Alaska Dieset Electoe 

122 1'1 .-ln!lllle 

Fairbanks .. IK 997111 

907-../5]~8!51 

W\ru·.tananacltie!i org 

-D- NORTHERN LIGHTS ~=rw~w;:rRoad 

(907}562-2222 

www.nathem-hghts.com 

H.lm .. s 10-30\IOC 

40' Powervtew Extension , Output Connection 

PMG Con- Kit wilh MX34l kC. \loibg<o R~ 

Exhaust Flex SIS4~ X 1~r 4~ CAT Flange X4' Floating F!an9! 

Powervtew Module 

Cost of EPA complaint, 99kW 

genset with DPF 

'""'"~··""""'"'date- is 3IJbject to ns:eill'ing an t-xeaded' ort:JB, avalabl'ity, Md production $eheoduling approvaL. 

~~~~~~~~~~:~·~~~~~~,~~~~~~~:~~~~~"· 

fur a MPQC13.2S to RAMPART VIllAGE Total~ pti~ is Se.6. 140 
136 

Æ 


27895.109

l~1nt1na 

Chiel-s 

Conference 

122 r1 Avenue 

Fairbanks, AK 99701 

907-451-8251 

www. Lananachiet~-. org 

Appendix 2. Quote from CRE for 2 99kW JD4045AFM85 diesel genset packages MY 2014 or newer. 

Please note 4 other vendors responded they were unable to quote the project due to their inability to 

source the engines specified. 

-· Bid Scbedule 

The Bidder shiH Insert aunlt bkl price or a lump sum priw in fi&ures opposite eeth pay item and total 

price tor which an estimated quantity appears in tha bid S(htdule. The estimated quantity of work for 

pavment on a lump bum basis wlft Ill! •an required" and as further specified in tile comet. 

Olalkyftslc 810 SCHEDUlE Chalkyitsik Generator ----1 

VilfaSe Repla~ment Project 

Council 

Project IT1KlK•l7.01 

Item No. Item llesalpt!on l A.mount llld 

001 Purchase and Shipmtnt of 2 JD Generator Sets 15S. SIIIJ. co 

002 Shipment of 2 pnerator to Cllaliyltslk, AK JJ '111/J. r:O 

003 Labor associated with Replacement af Generators, 

lntecretion of ptlel'ators into e~istin& switchgears 

end repair of the waste heat s,'Stf!m, deanlng and 

new gt,<col on the generator side of tile system are ;,if, '15/J./.1() 

required 

IXM Removal of the 2 replacement pnerators 011t of 

the POWI!rhouse and Into storaae provided ontite S . .3.1D. tO I 

.. Total Bid: ·-· f .i I(, i}$6. &~O