59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–445 

SATISFYING ENERGY NEEDS AND SAVING THE 

ENVIRONMENT ACT 

MARCH 7, 2016.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 3797] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 3797) to establish the bases by which the Administrator of the Environmental Protection Agency shall issue, implement, and enforce certain emission limitations and allocations for 

existing electric utility steam generating units that convert coal 

refuse into energy, having considered the same, report favorably 

thereon without amendment and recommend that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 5 

Committee Consideration ........................................................................................ 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 9 

Statement of General Performance Goals and Objectives .................................... 9 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 9 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 9 

Committee Cost Estimate ....................................................................................... 9 

Congressional Budget Office Estimate ................................................................... 9 

Federal Mandates Statement ................................................................................. 10 

Duplication of Federal Programs ............................................................................ 10 

Disclosure of Directed Rule Makings ..................................................................... 10 


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1On July 6, 2011, the Environmental Protection Agency (EPA) finalized the CSAPR. This rule 

was promulgated pursuant to section 110 of the Clean Air Act (CAA) and requires reductions 

in sulfur dioxide (SO2) and nitrogen oxide (NOΧ) emissions from electric generating units located 

in the 28 States covered by the rule. 2On February 16, 2012, EPA finalized the MATS rule. This rule was promulgated pursuant 

to section 112 of the Clean Air Act and requires reductions in emissions of mercury and other 

air toxics, as well as certain acid gases from power plants. On June 29, 2015, the U.S. Supreme 

Court ruled that EPA erred when the agency concluded that costs did not need to be considered 

in the MATS rule. EPA is still in the process of responding to this decision, and on November 

20, 2015, proposed a supplemental finding concluding that consideration of costs would not have 

altered EPA’s original rule. 3 As the bill’s sponsor, Rep. Rothfus testified at the Subcommittee on Energy and Power’s February 3, 2016 hearing on the bill: 

[T]he coal industry has been a central part of Pennsylvania’s economy for many 

years. Unfortunately, historic mining activity littered Pennsylvania and a few other 

states with large piles of coal refuse (sometimes called waste coal), which is essentially 

a mix of lower quality coal, rocks, and dirt that remain after the mining and processing 

of coal. Before technology was invented to make use of this material, it accumulated 

in open spaces alongside cities and towns, close to schools and neighborhoods, and in 

fields across coal country. 

Advisory Committee Statement .............................................................................. 10 

Applicability to Legislative Branch ........................................................................ 11 

Section-by-Section Analysis of the Legislation ...................................................... 11 

Changes in Existing Law Made by the Bill, as Reported ..................................... 11 

Dissenting Views ..................................................................................................... 12 

PURPOSE AND SUMMARY

H.R. 3797, the Satisfying Energy Needs and Saving the Environment (SENSE) Act, was introduced by Rep. Keith Rothfus on October 22, 2015. The legislation addresses the application of the Environmental Protection Agency’s (EPA) Cross-State Air Pollution 

Rule (CSAPR) and Mercury Air Toxic Standards (MATS) rules, 

issued pursuant to sections 110 and 112 of the Clean Air Act, to 

electric generating units that utilize coal refuse to generate electricity and serve critical environmental cleanup and remediation 

purposes. Key provisions of H.R. 3797 include the following: 

• The bill would provide for limited modifications with respect to the Cross-State Air Pollution Rule by allocating additional sulfur dioxide allowances to coal refuse-to-energy facilities. 

• The bill would provide for limited modifications with respect to the Mercury and Air Toxics Rule for these coal refuse 

facilities by providing for alternative compliance options with 

respect to sulfur dioxide and hydrogen chloride emissions 

standards. 

BACKGROUND AND NEED FOR LEGISLATION

This legislation seeks to ensure that innovative, environmentally 

beneficial facilities that use coal refuse as fuel, can continue to operate and will not be forced to shut down, due to unachievable requirements included in the Environmental Protection Agency’s 

Cross-State Air Pollution Rule (CSAPR)1 and the Mercury and Air 

Toxics Standards (MATS).2

Coal refuse is the aboveground waste product of coal mining 

found near many abandoned mines in Pennsylvania and other coal 

mining areas.3 Coal refuse piles pose a number of environmental 

and safety threats, and the cost of addressing coal refuse has been 

estimated by State environmental regulators to be approximately 

$2 billion dollars in Pennsylvania alone, the most impacted State. 


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4 In Pennsylvania, coal refuse-to-energy facilities are recognized in the Pennsylvania Alternative Energy Portfolio Standards Act. See Testimony of Vince Brisini, Director of Environmental Affairs for Olympus Power, LLC, testifying on behalf of ARIPPA, a trade association representing the coal refuse energy industry, Preliminary Transcript available at http:// 

docs.house.gov/meetings/IF/IF03/20160203/104366/HHRG-114-IF03-Transcript-20160203.pdf. 

Coal refuse-to-energy facilities are specialized power plants developed to recycle the coal refuse by using it as an energy source 

to generate affordable, reliable electricity. There are 19 coal refuseto-energy facilities, including 14 in Pennsylvania. In addition to 

creating an estimated 1,200 direct and 4,000 indirect jobs in areas, 

many of which are in economically distressed, these facilities have 

thus far removed 214 million tons of coal refuse from the environment, at no expense to taxpayers.4 As Rep. Rothfus testified at the 

Subcommittee on Energy and Power’s February 3, 2016 hearing on 

H.R. 3797: 

[The] coal refuse-to-energy industry has been a leader on 

solving this problem. With advanced technology, this industry has been able to use this previously worthless material to generate affordable and reliable energy. In the 

process, they have removed over 200 million tons of coal 

refuse in Pennsylvania alone and remediated many formerly-polluted sites. Thanks to the hard work of the dedicated people in this industry, landscapes have been restored, rivers and streams have been brought back to life, 

and towns across coal country have been relieved of unsafe 

and unsightly waste coal piles. 

And it is important to note that private sector leadership 

on this issue has saved taxpayers millions of dollars in 

cleanup costs. It has also created hundreds of family-sustaining jobs in areas that have been economically distressed for many years. These jobs and the communities 

they support are at risk today, unless we stand up to defend them. 

Similarly, at the hearing, the Chairman of the Western Pennsylvania Coalition for Abandoned Mine Reclamation, Dennis Beck, 

testified that ‘‘[t]hese waste plants are a great example of ingenuity, cutting-edge technology and concern for the environment.’’ 

Despite the extraordinary environmental benefits of these facilities, the EPA has included certain emissions limits in the agency’s 

CSAPR and MATS regulations that are not achievable for all coal 

refuse-to-energy plants. If these facilities shut down, the communities served by them will lose the electricity, jobs, and environmental cleanup provided by these coal refuse-to-energy plants. 

What the legislation would do 

The bill includes limited provisions that would allow these innovative coal refuse-to-energy facilities to generate affordable, reliable energy and continue their essential environmental remediation work in a responsible manner. 

Specifically, the bill would, with respect to the CSAPR, allocate 

additional sulfur dioxide (SO2) allowances to coal refuse-to-energy 

facilities. The allowances would be reduced elsewhere in the program so the overall cap does not change. The bill would, with respect to MATS, create an alternative means of demonstrating compliance with the hydrochloric acid (HCl) standard by using SO2 as 


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5See White Stallion Energy Center, LLC v. Environmental Protection Agency, Case No. 12– 

1100, U.S. Court of Appeals for the District of Columbia Circuit (April 15, 2014). 6Mr. Brisini further testified that ‘‘Now, as far as the idea that [the legislation] is usurping 

states’ rights I find that interesting because the federal government just did that in the FIP.’’ 

a proxy and assuming that a 93 percent reduction in SO2 demonstrates compliance with the HCl standard. 

At the hearing on H.R. 3797, concerns were raised that the bill 

would choose ‘‘winners and losers,’’ and that it favored coal refuse 

plants at the expense of other facilities. In response, Mr. Brisini 

testified that in this rulemaking EPA has effectively chosen ‘‘winners and losers,’’ and stated: 

I find it really interesting that we keep hearing this— 

well, this SENSE Act picks winners and losers when in 

fact the federal implementation plan picked the winners 

and losers and they happened to pick in CSAPR the bituminous coal-fired refuse plants to be the losers in the 

CSAPR phase two allocation. . . . And they also picked 

the bituminous coal-fired refuse plants to be the loser in 

MATS because, as I have said all along, the anthracite 

refuse plants can meet the alternative 0.2 standard. . . . 

That is because the sulfur content of the coal refuse in the 

anthracite region is lower. It is not because the technology 

is different or they have anything special and it is part of 

the problem when you lump all of these things together 

not recognizing the technical and the differences in these 

kinds of fuels. 

In addition, at the hearing, some suggested that coal refuse-toenergy facilities can meet the requirements of the MATS rule, citing the District of Columbia Court of Appeals decision in White 

Stallion v. Environmental Protection Agency.5 The court in that 

case, declined to create a subcategory for coal refuse plants, finding 

that there were plants that could achieve the HCL and SO2 standards in the MATS rule. Notwithstanding the court’s holding, Mr. 

Brisini testified that as a practical matter only two coal refuse 

plants are capable of meeting the limits. He specifically testified: 

‘‘There are actually two bituminous plants that can meet the hydrochloric acid [requirements]. No other plants, whether they are 

bituminous coal refuse anthracite coal refuse, they don’t do it.’’ 

Finally, at the hearing, suggestions were made that the legislation was unnecessary because States could provide relief to coal 

refuse facilities by reallocating allowances under CSAPR. Mr. 

Brisini testified, however, that States would be unlikely to provide 

timely relief because this would involve a lengthy process requiring 

approval from EPA: 

Now, as far as the authority to exempt or I can do a surgical reallocation tomorrow, no, they can’t. This is a FIP. 

This is a federal implementation plan, and to change that 

federal implementation plan you need a new state implementation plan. EPA has up to 18 months to respond to 

a federal implementation plan change. So the idea that I 

can come in there and fix this tomorrow is not true and 

I will say it that bluntly.6


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HEARINGS

The Subcommittee on Energy and Power held a hearing on HR 

3797 on February 3, 2016. The hearing was entitled, ‘‘H.R. 3797, 

the Satisfying Energy Needs and Saving the Environment (SENSE) 

Act and H.R. ll, the Blocking Regulatory Interference from Closing Kilns (BRICK) Act’’ and witnesses included the following: 

• The Honorable Keith J. Rothfus, U.S. House of Representatives, Pennsylvania; 

• Davis Henry, President and CEO, Henry Brick; 

• Creighton ‘‘Butch’’ McAvoy, President, McAvoy Brick Company; 

• Vincent Brisini, Director of Environmental Affairs for 

Olympus Power; 

• Dennis Beck, Chairman of the Western Pennsylvania Coalition for Abandoned Mine Reclamation; and, 

• John Walke, Senior Attorney and Clean Air Director, Natural Resources Defense Council. 

COMMITTEE CONSIDERATION

On February 11, 2016, the Subcommittee on Energy and Power 

met in open markup session to consider H.R. 3797 and forwarded 

the bill to the full Committee, without amendment, by voice vote. 

On February 25, 2016, the Committee on Energy and Commerce 

met in open markup session to consider H.R. 3797. During the 

markup, two amendments were offered and rejected by record vote. 

A motion by Mr. Upton to order H.R. 3797 reported to the House, 

without amendment, was agreed to by a record vote of 29 ayes and 

22 nays. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. The following reflects the record votes taken during the Committee consideration: 


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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee made findings that are reflected 

in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

H.R. 3797 would provide for limited modifications to CSAPR for 

coal-refuse-to-energy facilities by allocating additional SO2 allowances to coal refuse-to-energy facilities, and limited modifications to 

MATS for these coal refuse facilities by providing for alternative 

compliance options. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 3797 

would result in no new or increased budget authority, entitlement 

authority, or tax expenditures or revenues. 

EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI of the 

Rules of the House of Representatives, the Committee finds that 

H.R. 3797 contains no earmarks, limited tax benefits, or limited 

tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, March 4, 2016. 

Hon. FRED UPTON, 

Chairman, Committee on Energy and Commerce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3797, the SENSE Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Jon Sperl. 

Sincerely, 

KEITH HALL. 

Enclosure. 

H.R. 3797—SENSE Act 

H.R. 3797 would require the Environmental Protection Agency 

(EPA) to provide greater flexibility to certain power plants that are 


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subject to emissions limitations under EPA’s Cross-State Air Pollution Rule (CSAPR) and the Mercury and Air Toxics Standards for 

Power Plants (MATS). Affected power plants generate electricity by 

burning coal refuse (a waste byproduct of coal) as their primary 

fuel source. 

The bill would require EPA to allocate to plants using coal refuse 

in 2017 and subsequent years the same number of emissions allowances for sulfur dioxide that have been previously allocated to 

those plants, rather than reducing allowances for those plants. The 

legislation also would prohibit those plants from transferring unused allowances to other entities and would allow coal refuse operators to bank those allowances for use in future years. The bill 

would not change the total number of allowances allocated to each 

state under the CSAPR. 

In addition, H.R. 3797 would require EPA to permit operators of 

plants using coal refuse to comply with an alternative emissions 

standard for sulfur dioxide that is less stringent than the current 

MATS. 

Based on information from EPA about the costs of modifying its 

existing regulations to comply with this legislation, CBO estimates 

that implementing H.R. 3797 would have an insignificant cost to 

EPA. Because enacting H.R. 3797 would not affect direct spending 

or revenues, pay-as-you-go procedures do not apply. 

CBO estimates that enacting H.R. 3797 would not increase net 

direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2027. 

H.R. 3797 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Jon Sperl. The estimate was approved by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 3797 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting H.R. 3797 specifically directs to be completed no specific rulemakings within the meaning 

of 5 U.S.C. 551 that would not otherwise be issued by the agency. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 


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APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

The legislation includes the following provisions: 

Section 1. Short title 

This section provides the short title of ‘‘Satisfying Energy Needs 

and Saving the Environment Act’’ or the ‘‘SENSE Act’’. 

Section 2. Standards for coal refuse power plants 

This section would modify the standards as they apply to coal 

refuse power plants. 

Section 2(a) provides definitions for the following terms: administrator, boiler operating day, coal refuse, coal refuse electric utility 

steam generating unit, coal refuse-fired facility, Cross-State Air 

Pollution Rule, electric utility steam generating unit, and Phase I 

of CSAPR. 

Section 2(b) provides less restrictive sulfur dioxide emissions allocations under CSAPR for coal refuse electric utility steam generating units. 

Section 2(c) provides an alternative compliance means for HCl 

and SO2 under MATS for coal refuse electric utility steam generating units. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

This legislation does not amend any existing Federal statute. 


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1 U.S. EPA, EPA Announces Landmark Clean Air Interstate Rule—Major Step Forward in 

Eliminating ‘Smog’ Days in New England (Mar. 10, 2005) (online at yosemite.epa.gov/opa/ 

admpress.nsf/dc614f1d30c3fd66852572a000657b5a/ 

ff502720c7a5c8d2852570ca006ab475!OpenDocument). 2State of North Carolina v. EPA (D.C. Cir. 2008) (on petitions for rehearing); State of North 

Carolina v. EPA, Reply in Support of Petition for Rehearing or Rehearing En Banc (Nov. 17, 

2008). 3 U.S. EPA, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and 

Ozone and Correction of SIP Approvals; Final Rule, 76 Fed. Reg. 48208 (Aug. 8, 2011) (final 

rule) (hereinafter ‘‘Cross-State Air Pollution Rule’’). 4On December 30, 2011, CSAPR was stayed prior to implementation. On August 21, 2012, 

CSAPR was vacated. EME Homer City Generation, L.P. v. EPA, No. 11–1302 (D.C. Cir. Aug. 

21, 2012) (online at www.cadc.uscourts.gov/internet/opinions.nsf/19346B280C78405C852 57A61004DC0E5/$file/11-1302-1390314.pdf). 5 EPA v. EME Homer City Generation, L.P., No. 12–1182, Slip Op. (2013) (online at 

www.supremecourt.gov/opinions/13pdf/12-1182_553a.pdf); Order Granting EPA’s Motion to Lift 

the Stay of the Transport Rule, EME Homer City Generation, L.P. v. EPA, No. 11–1302 (D.C. 

Cir.) (online at www3.epa.gov/airtransport/CSAPR/pdfs/CSAPR_Stay_Lift.pdf). 

DISSENTING VIEWS 

H.R. 3797, the ‘‘Satisfying Energy Needs and Saving the Environment (SENSE) Act,’’ represents an effort by the Republicans to 

give special breaks under two Clean Air Act rules to power plants 

that use waste coal to generate electricity. The rules—the Cross 

State Air Pollution Rule (CSAPR) and the Mercury and Air Toxics 

Standards (MATS) rule—are two of the most important rules for 

protecting public health from toxic air pollutants like mercury and 

sulfur dioxide. If this bill were to become law, waste coal facilities 

would be able to pollute at a higher rate than other power plants. 

I. BACKGROUND

A. EPA’s Cross-State Air Pollution Rule 

To help 28 states in the eastern, central, and southern United 

States meet the health-based ambient air quality standards for fine 

particulate matter (PM2.5) and ozone, the Environmental Protection 

Agency (EPA) issued the Clean Air Interstate Rule (CAIR) in 

March 2005. Under the rule, upwind states were required to reduce 

sulfur dioxide (SO2) and nitrogen oxides (NOX) emissions.1 This 

rule was promulgated pursuant to Clean Air Act section 

110(a)(2)(D)(i)(I), which is known as the ‘‘good neighbor provision.’’ 

CAIR was overturned by the D.C. Circuit Court of Appeals in 

2008.2

EPA promulgated CSAPR as a replacement for CAIR on July 6, 

2011.3 CSAPR requires states in the eastern, central, and southern 

United States to reduce power plant emissions that cause air quality problems in other states. 

The timing of CSAPR’s implementation has been affected by a 

number of court actions.4 On April 29, 2014, the U.S. Supreme 

Court issued an opinion reversing an earlier D.C. Circuit decision 

that had vacated the rule. Subsequently, on October 23, 2014, the 

D.C. Circuit lifted its prior CSPAR stay.5 The D.C. Circuit also 

granted EPA’s request to delay the rule’s compliance deadlines by 


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6 U.S. EPA, Cross-State Air Pollution Rule (CSAPR) (accessed Jan. 31, 2016) (online at 

www3.epa.gov/crossstaterule/). 7 U.S. EPA, Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 80 Fed. Reg. 

75706 (Dec. 3, 2015) (proposed rule). 8 U.S. EPA, Cross-State Air Pollution Rule Presentation (Dec. 15, 2011) (online at 

www3.epa.gov/crossstaterule/pdfs/CSAPRPresentation.pdf); U.S. EPA, FACT SHEET: The 

Cross-State Air Pollution Rule: Reducing the Interstate Transport of Fine Particulate Matter and 

Ozone (July 18, 2011) (online at www3.epa.gov/crossstaterule/pdfs/CSAPRFactsheet.pdf). 9 Id. 

10 U.S. Environmental Protection Agency, About Air Toxics (online at www.epa.gov/oar/ 

toxicair/newtoxics.html). 11 Clean Air Act § 112(f). 

three years. Accordingly, CSAPR Phase 1 implementation began in 

2015, with Phase 2 beginning in 2017.6 In December 2015, EPA 

proposed the CSAPR Update Rule to address interstate transport 

of air pollution under the 2008 ozone National Ambient Air Quality 

Standards (NAAQS).7

In the CSAPR rules, EPA provides a multi-step process to address the requirements of the good neighbor provision. Under that 

process, if EPA determines that a downwind state expects to have 

problems attaining or maintaining an air quality standard, EPA 

would then look at which upwind states are contributing to these 

identified problems. EPA would then set up an ‘‘emissions budget’’ 

for those upwind states found to have emissions that significantly 

contributed to problems in a downwind state. A given state’s emissions budget represents the allowable amount for emissions, after 

identifying and accounting for those emissions contributing significantly to nonattainment by a downwind state.8

Once a state’s emissions budget was established, EPA set up a 

tradable allowance program for the power plants covered by 

CSAPR. Power plants within a state were allocated emissions allowances that could be traded—subject to some requirements—as 

needed to comply with the rule. Alternatively, states had the option 

of developing their own state implementation plan (SIP) to meet 

the rule’s required emissions reductions.9

B. Clean Air Act Section 112 

Section 112 of the Clean Air Act requires the EPA to set technology-based standards to reduce air toxics. These hazardous air 

pollutants (HAPs) are known or suspected to cause cancer or other 

serious health effects, such as reproductive or birth defects or neurological effects, or adverse environmental effects. EPA rule makings aim to reduce the release of 187 HAPs including mercury, cadmium, lead, benzene and dioxin.10 EPA takes a technology-based 

approach to regulating HAPs in order to achieve substantial reductions in air toxics relatively quickly using readily available technology. EPA also follows the technology-based standards with additional standards where needed to protect health, as determined 

through risk assessments.11

Section 112 requires EPA to develop regulations for distinct 

source categories (e.g., power plants, boilers, and cement kilns) that 

set specific emission limits based on the emission levels already 

being achieved by similar facilities. These regulations are known as 

Maximum Achievable Control Technology (MACT) standards. For 

existing sources, the emission standard must be at least as stringent as the average emissions achieved by the best-performing 12 


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12 Id. at § 112(d)(3). 13 U.S. EPA, Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units—Final Report to Congress, Volume 1 (Feb. 1998). 14 U.S. EPA, National Emission Standards for Hazardous Air Pollutants from Coal-and Oilfired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired 

Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9034 (Feb. 16, 2012) (final rule) (online at 

www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-806.pdf) (hereinafter ‘‘MATS Final Rule’’). 15 U.S. EPA, Mercury and Air Toxics Standards (MATS) Basic Information (accessed Jan. 31, 

2016) (online at www3.epa.gov/mats/basic.html). 16 Heavy metals such as mercury, arsenic, and chromium, and acid gases such as hydrochloric 

acid (HCl) and hydrofluoric acid (HF). 17 U.S. EPA, Fact Sheet: Mercury and Air Toxics Standards for Power Plants (Dec. 2011) (online at www.epa.gov/airquality/powerplanttoxics/pdfs/20111221MATSsummary fs.pdf). 18 Id. 19 U.S. EPA, Mercury and Air Toxics Standards (MATS) Basic Information (accessed Jan. 31, 

2016) (online at www3.epa.gov/mats/basic.html); U.S. EPA, MATS Final Rule, 77 Fed. Reg. 

percent of sources in that source category. For new sources, the 

emission standard must be at least as stringent as the emission 

control achieved by the best-controlled similar source.12 These minimum emissions levels are known as the MACT floor. 

C. EPA’s Mercury and Air Toxics (MATS) Rule 

Section 112 of the Clean Air Act directs EPA to complete a study 

of the hazards to public health reasonably anticipated to occur as 

a result of toxic air pollution from power plants. EPA completed 

the study and concluded that it was appropriate and necessary to 

regulate HAPs from power plants.13 Power plants are by far the 

largest U.S. source of mercury emissions into the air, and they also 

release other toxic metals, such as arsenic, chromium and nickel, 

which can cause cancer and other serious health harm. 

EPA’s finding triggered a requirement for the Agency to finalize 

regulations to control toxic air pollution from power plants. In 

2012, EPA issued the MATS rule, which established the first national standards to address power plant emissions of mercury and 

toxic air pollution.14 There were no federal standards requiring 

power plants to limit their emissions prior to this rule—despite the 

availability of proven control technologies, and the passage of more 

than 20 years from enactment of the 1990 Clean Air Act Amendments.15

EPA’s MATS rule establishes MACT standards for HAPs emitted 

from coal- and oil-fired power plants, limiting the emissions of 

heavy metals and acid gases16 from these sources. The final rule 

will prevent 90 percent of the mercury in coal burned at power 

plants from being released.17 To achieve these reductions, the 

MATS rule sets numeric emissions limits for mercury, particulate 

matter (as a surrogate for other heavy metals), and acid gases for 

all existing and new coal-fired and oil-fired units. 

The MATS rule also establishes work practice standards, rather 

than numeric emissions limits, to reduce emissions of certain organic HAPs, including dioxin/furan, that are a product of inefficient 

combustion. These work practice standards merely require utilities 

to perform annual maintenance and inspection at covered units to 

improve efficiency.18

Existing sources had three years—or until April 16, 2015—to 

comply with the rule. In the final rule, EPA made it clear that the 

option of a fourth year—until April 16, 2016—for compliance would 

be broadly available.19


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9304, at 9410 (‘‘We believe that the permitting authorities have the discretion to use this extension authority to address a range of situations in which installation schedules may take more 

than 3 years’’). 20 U.S. EPA, MATS Final Rule, 77 Fed. Reg. 9304, at 9397. 21 U.S. EPA, EPA’s Responses to Public Comments on EPA’s National Emission Standards for 

Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, p. 

761 (Dec. 2011) (online at www3.epa.gov/airtoxics/utility/mats_rtc_chapters_foreword-1-2-3- 

4_121611.pdf). 22 U.S. EPA, MATS Final Rule, 77 Fed. Reg. 9304, at 9396–9397. 23 Id. at 9395. 24White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222, at 1250 (D.C. Cir. Apr. 15, 2014). 25 U.S. EPA, MATS Final Rule, 77 Fed. Reg. 9304, at 9484. 26White Stallion Energy Center at 1250. 

During the MATS rulemaking process, EPA identified several 

power plants that, based on the data available, exhibited the ability to achieve all of the MACT standards for existing sources.20

Among those sources are both pulverized coal and circulating fluidized-bed power plants, and power plants burning bituminous coal, 

subbituminous coal, lignite, and coal refuse (or waste coal). The 

EPA has also noted that there are waste coal units that have installed add-on control technology that will allow them to be in compliance with MATS requirements.21

A number of groups submitted comments on the MATS rule urging EPA to create a separate subcategory for waste coal units.22

However, in the final MATS rule, EPA noted that the HAP emissions from waste coal units are not sufficiently different from emissions from coal-fired power plants to warrant further subcategorization or a separate MACT floor.23 This approach was upheld 

by the D.C. Circuit Court of Appeals which concluded that ‘‘. . . 

EPA reasonably decided that separate standards for coal-refusefired [circulating fluidized bed power plants] were not warranted.’’ 24

D. Use of waste coal 

As noted above, a subset of power plants in the U.S. burn waste 

coal as their fuel source. This waste coal is a byproduct of coal mining, physical coal cleaning, and other coal preparation operations, 

and also contains matrix materials, clay and other organic and inorganic materials.25 Waste coal is primarily found in large piles 

near abandoned mines, and once burned the resulting ashes are 

used in mine reclamation projects.26 The majority of these power 

plants are in Pennsylvania; however, some are located in other 

states like West Virginia and Utah. 

II. H.R. 3797, THE SATISFYING ENERGY NEEDS AND SAVING THE

ENVIRONMENT (SENSE) ACT

A. Summary of the SENSE Act 

Section 2(b) relates to the treatment of waste coal facilities under 

CSAPR. The section requires the EPA Administrator to ensure that 

power plants using waste coal derived from bituminous coal would 

maintain the same allocation of Phase 1 SO2 emissions allowances 

under Phase 2. Section 2(b)(1)(C) prohibits these waste coal plants 

from trading or banking the additional SO2 emissions allowances. 

Section 2(b)(2) prohibits the EPA Administrator from increasing a 

state’s emissions budget in Phase 2 to account for the extra allowances allocated to waste coal units. 


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27 Note: section 2(c) is not limited just to waste coal units burning bituminous coal. 28 House Committee on Energy and Commerce, Subcommittee on Energy and Power, Written 

Statement of Janet McCabe, Acting Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency (EPA), Legislative Hearing on H.R. 3797, the Satisfying Energy Needs 

and Saving the Environment Act (SENSE) Act and H.R. ll, the Blocking Regulatory Interference from Closing Kilns (BRICK) Act, 114th Cong. (Feb. 3, 2016) (online at docs.house.gov/ 

meetings/IF/IF03/20160203/104366/HHRG-114-IF03-20160203-SD004.pdf) (hereinafter ‘‘Subcommittee Legislative Hearing’’). 29Subcommittee Legislative Hearing, Response to Questions of John Walke, Natural Resources Defense Council (online at democrats-energycommerce.house.gov/committee-activity/ 

hearings/hearing-on-hr-3797-the-satisfying-energy-needs-and-saving-the-0). 30Subcommittee Legislative Hearing, Written Statement of Janet McCabe, Acting Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency (EPA) (online at 

docs.house.gov/meetings/IF/IF03/20160203/104366/HHRG-114-IF03-20160203-SD004.pdf). 

Section 2(c) relates to the treatment of waste coal facilities under 

MATS.27 Specifically, section 2(c)(2)(v) provides an additional compliance option for the hydrogen chloride (HCl) and SO2 standard, 

allowing waste coal facilities—or a group of waste coal facilities— 

to capture and control 93 percent of SO2 emissions. 

B. Issues raised by the SENSE Act 

The CSAPR provisions in section 2(b) raise a number of concerns. 

First, in the absence of the bill, Phase 2 SO2 emissions allowance 

allocations would likely have decreased for all, or at least most, of 

the existing waste coal units. Second, preventing any increase to a 

state’s emissions budget, as this section would do, is ostensibly to 

limit the impact of the resulting increased pollution from waste 

coal facilities on downwind states. However, the result of this provision would be that other power plants in a given state that are 

covered by CSAPR will have to cut their emissions to make up the 

difference. Third, this section gives the EPA Administrator a number of new authorities that the Clean Air Act currently reserves to 

states by tasking the Administrator with providing and allocating 

CSAPR emissions allowances. 

In essence, section 2(b) picks winners and losers—tipping the 

scales in favor of bituminous waste coal units, at the expense of all 

other covered units within a state. This provision would artificially 

reallocate emissions allowances, alter the CSPAR trading system, 

create inequities in the market, and impede a state’s right to determine how to best comply with the requirements of the rule. In submitted testimony, EPA noted that the bill’s changes to the CSAPR 

program ‘‘would remove economic incentives to reduce emissions at 

coal refuse plants,’’ and ultimately would result in ‘‘a less efficient 

and more costly compliance with CSAPR.’’28

Further, if a state wishes to allocate additional allowances to 

waste coal plants, it can already do so through the SIP process. 

During the subcommittee legislative hearing, John Walke from the 

Natural Resources Defense Council noted, ‘‘States today have the 

authority to differently allocate allowances within the emitters in 

their state. . . . So if Pennsylvania wants to incentivize waste coal 

energy production, they can do so by reallocating sulfur dioxide allowances within the electric sector.’’ 29 EPA also raised concerns 

with this provision since it ‘‘would potentially deny states control 

over allocations of allowances by rendering any submitted state 

plan with a different allocation to these units unapprovable’’ by the 

Agency.30


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31 U.S. EPA, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards, at 

2–8—2–9 (Dec. 2011) (online at www3.epa.gov/ttn/ecas/regdata/RIAs/matsriafinal.pdf). 32Subcommittee Legislative Hearing, Response to Questions of John Walke, Natural Resources Defense Council (online at democrats-energycommerce.house.gov/committee-activity/ 

hearings/hearing-on-hr-3797-the-satisfying-energy-needs-and-saving-the-0). 

The MATS provisions in section 2(c) also raise a number of concerns. It is not known how many facilities would opt for the bill’s 

new compliance option, but the end result is likely additional emissions of air pollutants. Proponents argue that waste coal plants are 

unable to meet the current HCl and SO2 limits and need an alternative pathway to comply with the MATS rule. However a less 

stringent SO2 standard is not necessary since existing technology 

is capable of controlling 99 percent of HCl and 96 percent of SO2.31

At the hearing, Mr. Walke explained that ‘‘[i]t is simply incorrect 

to suggest that coal waste plants burning any type of coal waste 

are incapable of achieving either the HCl or the SO2 standard in 

the existing MATS rule’’ and that, 

[W]hen the D.C. Circuit in its decision heard the full legal 

arguments from the trade association for waste coal operators and looked at all the evidence they presented and the 

evidence in the administrative record that EPA had compiled, they squarely rejected those claims in a three to 

nothing decision and that decision was left untouched by 

the Supreme Court in that relevant Respect.32

Democratic members offered two amendments during the full 

committee markup to address the concerns raised by the SENSE 

Act. Ranking Member Pallone offered an amendment to strike the 

bill’s CSAPR sections, highlighting that the provision is unnecessary since states already have the ability to reallocate emissions allowances to benefit waste coal units if they so choose. Rep. Engel 

offered an amendment allowing a state to opt-out of the bill’s 

CSAPR provisions if it determined that doing so would lead to an 

increase in the overall cost of complying with EPA’s rule. The 

Engel amendment highlights EPA’s concern that the bill interferes 

with the CSAPR market and would likely result in less efficient 

and more costly compliance. Both amendments also address the 

bill’s states’ rights issues by preserving a state’s ability to determine the best method of compliance with CSAPR, which is currently afforded to them under the Clean Air Act. The Pallone and 

Engel amendments were each defeated by a party line vote of 22– 

29. 

III. CONCLUSION

We oppose H.R. 3797 and the legislative remedy offered by this 

bill. It comes as no surprise that the majority is once again offering 

legislation to undermine Clean Air Act regulations to benefit coalfired power plants at the expense of public health. What is surprising is that the SENSE Act puts major coal-fired plants at a disadvantage relative to waste coal plants that receive regulatory relief under this legislation. H.R. 3797 undermines states’ authorities 

to develop emission budgets tailored to the specific emission 

sources in their power and industrial sectors. And, H.R. 3797 unVerDate Sep 11 2014 04:53 Mar 08, 2016 Jkt 059006 PO 00000 Frm 00017 Fmt 6604 Sfmt 6602 E:\HR\OC\HR445.XXX HR445

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dermines the proven market-based approach of using emission 

credits to achieve improved air quality at the lowest cost. 

All of this is being done to benefit the approximately 20 waste 

coal plants that exist in a handful of states. While these plants address one of coal’s major legacy problems—dangerous, polluting 

piles of coal mine tailings from abandoned coal mining operations— 

cleanup of these piles can and should be done without undue transfer of mercury, SO2 and other pollutants from the land to the air. 

It is ironic that those who routinely accuse President Obama and 

his administration of waging a ‘‘war on coal’’ are supporting H.R. 

3797, a bill that will place greater emission reduction burdens on 

coal-fired utilities to allow waste coal facilities to emit more pollutants. The bill also deprives facilities of valuable emission credits 

that they would otherwise gain under current law for converting to 

natural gas or otherwise reducing their emissions. 

None of this is necessary. The states already have the authority 

to allocate additional emission allowances to waste coal plants if 

they choose to do so under CSAPR. This bill imposes a specific allocation solution on the states, a one-size-fits-all solution that allows 

waste coal plants to emit more pollutants. In addition, there is no 

evidence that more generous emission allocations are necessary. 

There are waste coal plants that meet the CSAPR and MATS regulations today and there is technology available to enable waste coal 

plants to comply with the requirements of these rules. There is no 

justification for treating them differently from other coal-fired generation facilities. 

For the reasons stated above, we dissent from the views contained in the Committee’s report. 

FRANK PALLONE, JR., 

Ranking Member, Committee 

on Energy and Commerce. 

BOBBY L. RUSH, 

Ranking Member, Subcommittee on Energy and 

Power. 

Æ 


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