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99–969 2016

H.R. 3797, THE SATISFYING ENERGY NEEDS AND 

SAVING THE ENVIRONMENT (SENSE) ACT; AND 

H.R. lll, THE BLOCKING REGULATORY 

INTERFERENCE FROM CLOSING KILNS (BRICK) 

ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 3, 2016 

Serial No. 114–113 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

(III) 

SUBCOMMITTEE ON ENERGY AND POWER

ED WHITFIELD, Kentucky 

Chairman 

PETE OLSON, Texas 

Vice Chairman 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Vice Chairman 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

BILL FLORES, Texas 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JERRY MCNERNEY, California 

PAUL TONKO, New York 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

DAVID LOEBSACK, Iowa 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(V) 

C O N T E N T S 

Page 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 1 

Prepared statement .......................................................................................... 16 

Hon. Jerry McNerney, a Representative in Congress from the State of California, opening statement .................................................................................... 17 

Hon. Bill Johnson, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 18 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 20 

Prepared statement .......................................................................................... 21 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 96 

WITNESSES

Keith J. Rothfus, A Representative in Congress from the Commonwealth 

of Pennsylvania .................................................................................................... 22 

Prepared statement .......................................................................................... 25 

Vincent Brisini, Director, Environmental Affairs for Olympus Power ................ 29 

Prepared statement 1 ........................................................................................ 32 

Dennis Beck, Chairman, Western Pennsylvania Coalition for Abandoned Mine 

Reclamation .......................................................................................................... 38 

Prepared statement .......................................................................................... 40 

John Walke, Senior Attorney and Clean Air Director, Natural Resources 

Defense Council .................................................................................................... 46 

Prepared statement .......................................................................................... 48 

Davis Henry, President and CEO, Henry Brick ................................................... 61 

Prepared statement 2 ........................................................................................ 64 

Creighton ‘‘Butch’’ McAvoy, President, McAvoy Brick Company ........................ 68 

Prepared statement .......................................................................................... 71 

SUBMITTED MATERIAL

H.R. 3797 .................................................................................................................. 3 

Blocking Regulatory Interference from Closing Kilns (BRICK) Act .................... 13 

Statement of the United States Environmental Protection Agency .................... 98 

1 The addendum to Mr. Brisini’s testimony is available at: http:// 

docs.house.gov/meetings/if/if03/20160203/104366/hhrg-114-if03-wstatebrisiniv-20160203.pdf. 2 The addendum to Mr. Henry’s testimony is available at: http:// 

docs.house.gov/meetings/if/if03/20160203/104366/hhrg-114-if03-wstatehenryd-20160203-u2.pdf.] 

(1) 

H.R. 3797, THE SATISFYING ENERGY NEEDS 

AND SAVING THE ENVIRONMENT (SENSE) 

ACT; AND H.R. ———, THE BLOCKING REGULATORY INTERFERENCE FROM CLOSING 

KILNS (BRICK) ACT 

WEDNESDAY, FEBRUARY 3, 2016 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY AND POWER, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:04 a.m., in room 

2123 Rayburn House Office Building, Hon. Ed Whitfield (chairman 

of the subcommittee) presiding. 

Members present: Representatives Whitfield, Shimkus, Latta, 

Harper, McKinley, Johnson, Long, Ellmers, Flores, Mullin, 

McNerney, Engel, Green, Doyle, Welch, Loebsack, and Pallone (ex 

officio). 

Staff present: Will Batson, Legislative Clerk, E&P, E&E; Allison 

Busbee, Policy Coordinator, Energy and Power; Rebecca Card, Assistant Press Secretary; A.T. Johnston, Senior Policy Advisor; Ben 

Lieberman, Counsel, Energy & Power; Mary Neumayr, Senior Energy Counsel; Annelise Rickert; Legislative Associate; Dan Schneider, Press Secretary; Christine Brennan, Minority Press Secretary; 

Jeff Carroll, Minority Staff Director; Jean Fruci, Minority Energy 

and Environment Policy Advisor; Caitlin Haberman, Minority Professional Staff Member; Rick Kessler, Minority Senior Advisor and 

Staff Director, Energy and Environment; Josh Lewis, Minority EPA 

Detailee; and Alexander Ratner, Minority Policy Analyst. 

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

Mr. WHITFIELD. I would like to call the hearing to order this 

morning and I would like to recognize myself for 5 minutes for an 

opening statement. 

The Obama EPA has been particularly aggressive in issuing regulations and, of course, many of those regulations are beneficial. 

But at the same time, many of those regulations create job loss and 

obstacles to economic growth. And today we are going to be discussing two bills making targeted changes to EPA rules in order 

to avoid what we consider are adverse consequences: H.R. 3797, the 

Satisfying Energy Needs and Saving the Environment Act, referred 

to as the SENSE Act, and H.R., which I guess we don’t have a 

2 

number for this yet, the Blocking Regulatory Interference from 

Closing Kilns, or BRICK Act. 

Now, the SENSE Act was introduced by Rep. Keith Rothfus of 

Pennsylvania, who is with us today, and his bill addresses an issue 

of great concern in western Pennsylvania and other coal-mining regions around the country and that is the recycling of massive piles 

of coal refuse that were generated many years ago and continue to 

be located in many of these communities. Coal refuse is the aboveground waste product of coal mining found near many abandoned 

mine sites. Left unaddressed, coal refuse contributes to a number 

of environmental challenges such as acid mine drainage that may 

impact rivers and streams. Coal refuse from these abandoned 

mines can also spontaneously combust, creating fires that are difficult sometimes to put out. 

Fortunately, there is an economically viable solution that benefits the environment while reclaiming acres of land and disposing 

of the coal refuse. Specialized power plants have been developed 

that can use coal refuse to produce electricity, and they are doing 

that today. These coal refuse-to-energy facilities not only reduce 

the volumes of coal refuse, but the resultant ash is environmentally 

beneficial and can then be used for site remediation. 

However, the continued operation of these plants is in jeopardy 

by the EPA’s Cross-State Air Pollution Rule and the agency’s Mercury and Air Toxics Standard, also commonly referred to as Utility 

MACT. As written, these two EPA rules may cause the shutdown 

of coal refuse-to-energy plants and put a stop to the only economically proven means of addressing this issue. Members of this subcommittee have raised concerns with EPA regulators about the potential impact of the rules. I know that Congressman Rothfus has 

spent a great deal of time on it. And so we have been talking to 

EPA, asking for their assistance and, unfortunately, to this point 

they have simply ignored everything that we said. 

Now, the BRICK Act, as the name implies, addresses a BRICK 

industry regulation and I would like to thank Bill Johnson for his 

work on this draft bill. Last September, EPA finalized its national 

emission standards for hazardous air pollutants for brick and 

structural clay products manufacturing, commonly called Brick 

MACT. This rule contains ultra stringent new emission targets, 

and in fact it used as a baseline EPA’s 2003 Brick MACT rule 

which already reduced industry emissions by 95 percent, according 

to a recent report. It should be noted that those 2003 Brick MACT 

standards were vacated by a federal court in 2007. But as in so 

many EPA regulations where suits are filed and the complainants 

win, the money is already spent. 

The effort to comply has already been taken and so it is too late 

for a practical relief for these people, and that’s precisely where the 

brick industry is finding itself today. 

So I look forward to additional discussion. We have two panels 

of witnesses today about these practical common sense bills and 

hopefully we can provide some relief to these industries as they try 

to protect jobs, help economic growth and to expand their industries. 

[H.R. 3797 follows:] 

3 


99969.001
4 


99969.002
5 


99969.003
6 


99969.004
7 


99969.005
8 


99969.006
9 


99969.007
10 


99969.008
11 


99969.009
12 


99969.010
13 

[Blocking Regulatory Interference from Closing Kilns (BRICK) 

Act follows:] 


99969.011
14 


99969.012
15 


99969.013
16 

[The prepared statement of Mr. Whitfield follows:] 

PREPARED STATEMENT OF HON. ED WHITFIELD

The Obama EPA has issued numerous regulations impacting manufacturers and 

energy producers, and many of us are concerned about their impact on the economy 

and jobs. In particular, a few of these rules are extremely troubling, such as the 

ones that may cause more environmental harm than good and those that may force 

small businesses to shut down. Today, we will discuss two bills making targeted 

changes to EPA rules in order to avoid these adverse consequences, H.R. 3797, the 

Satisfying Energy Needs and Saving the Environment (SENSE) Act, and H.R. 

———, the Blocking Regulatory Interference from Closing Kilns (BRICK) Act. 

The SENSE Act was introduced by Rep. Keith Rothfus of Pennsylvania who we 

welcome to this subcommittee. His bill addresses an issue of great concern in Western Pennsylvania and other coal-mining regions, and that is the recycling of massive 

piles of coal refuse that were generated many years ago and continue to be located 

in many of these communities. Coal refuse is the aboveground waste products of 

coal mining found near many abandoned mines. Left unaddressed, coal refuse contributes to a number of environmental challenges such as acid mine drainage that 

may impact rivers and streams. Coal refuse from these abandoned mines can also 

spontaneously combust, creating massive fires that are difficult to put out. 

Fortunately, there is an economically viable solution that benefits the environment while reclaiming acres of land and disposing of the coal refuse. Specialized 

power plants have been developed that can use coal refuse to produce electricity. 

These coal refuse-to-energy facilities not only reduce the volumes of coal refuse, but 

the resultant ash is environmentally beneficial and can then be used for site remediation. 

However, the continued operation of these plants is jeopardized by the EPA’s 

Cross State Air Pollution Rule (CSAPR) and the agency’s Mercury and Air Toxics 

Standards (MATS), also commonly referred to as Utility MACT. As written, these 

two EPA rules may cause the shutdown of coal refuse-to-energy plants and put a 

stop to the only economically proven means of addressing coal refuse. Members of 

this subcommittee have raised their concerns with EPA regulators about the potential impact of these rules and on the need to treat coal refuse-to-energy facilities 

as a separate sub-category, but these concerns were ignored. 

The SENSE Act contains limited modifications to these rules as they apply to coal 

refuse-to-energy plants. Specifically, the bill provides less restrictive sulfur dioxide 

emissions allocations under the Cross State Air Pollution Rule, and creates an alternative means of compliance under the Mercury and Air Toxics Standards. In neither 

case would the bill repeal the provisions in these rules nor jeopardize the continued 

declines in the emissions regulated under them. But they would enable these coal 

refuse-to-energy facilities to continue operating and providing both electricity and 

environmental benefits to the communities they serve. 

The BRICK Act, as the name implies, addresses a brick industry regulation, and 

I would like to thank Bill Johnson for his work on this draft bill. Last September, 

EPA finalized its National Emission Standards for Hazardous Air Pollutants for 

Brick and Structural Clay Products Manufacturing, commonly called Brick MACT. 

This rule contains ultra-stringent new emissions targets, and in fact it used as a 

baseline EPA’s 2003 Brick MACT rule which already reduced industry emissions by 

95 percent, according to a recent Chamber of Commerce report. It should be noted 

that those 2003 Brick MACT standards were vacated by a federal court in 2007, but 

by the time the decision was handed down the industry had already undertaken expensive compliance measures. 

We want to make sure that this vulnerable industry does not face the same unfair 

situation for a second time. Compliance is especially challenging given that the 

brickmaking industry is dominated by small companies that lack the resources to 

install the costly new controls that are required. Many operators fear shutdowns 

and layoffs, and all to ratchet down already-low emissions by a very small amount. 

That is why the BRICK Act extends the compliance dates for these rules until after 

all judicial review is completed. This reasonable provision will prevent EPA from 

again imposing costly requirements that may later be found to be outside the agency’s authority. 

Both the SENSE Act and the BRICK Act provide specific solutions to specific 

problems created by EPA rules that directly threaten the continued operation of 

businesses in these important sectors of our economy. These targeted provisions will 

be a net plus for the environment as well as the economy and jobs in many small 

17 

communities. I urge all my colleagues to support these commonsense measures and 

I look forward to hearing the testimony from our witnesses today. 

Mr. WHITFIELD. With that, at this time I would like to recognize 

the gentleman from California, Mr. McNerney, for his 5-minute 

opening statement. 

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

Mr. MCNERNEY. Well, I thank the chairman and I thank the witness colleague. Today’s hearing focuses on a couple of bills, the 

BRICK Act and the SENSE Act, that are a familiar effort to weaken the Clean Air Act. 

Mr. Chairman, well thought out regulations make businesses 

more competitive and protect American people. These bills echo 

what we saw, for example, with the Ratepayer Protection Act, a 

partisan effort to weaken the Clean Air Act. 

Addressing air quality is a health and economic issue. Poor air 

quality can disrupt businesses, individuals, and families who have 

to live with its consequences. It is irresponsible and morally bankrupt to needlessly delay a rule from taking effect that will improve 

air quality, especially if the intent is to delay it indefinitely. The 

bills under consideration simply seek to maintain the status quo. 

Well, the status quo isn’t good enough. Our country can do better 

than that. 

I represent part of the San Joaquin Valley, which is also called 

the famed Central Valley of California. But, unfortunately, it has 

some of the worst air quality in the nation. Employees miss work, 

children miss school days and the elderly are often encouraged to 

stay inside on certain days. We have seen the air quality improve 

over the last decade, which I am happy to say I have experienced. 

But we are still living in poor air. I have seen firsthand the effect 

of pollution on our communities. Valley air quality is affected from 

a variety of sources—from China, from in-state and out-of-state vehicles, from drought, as well as from pollutions drifting in from 

other parts of the state and from other states. That is not to mention unforeseen incidents like the methane leak that has been releasing millions of pounds of methane per day in southern California. 

Our region has worked hard and taken steps to help address one 

of the biggest issues facing the valley. Recent improvements have 

produced significant economic and health benefits. But there is still 

an enormous amount of work to be done. Having worked in the private sector and an emerging field, I understand the difficulties that 

come with raising capital and business targets that are always 

moving around. 

But these advancements take time and investments. Sticking 

with the status quo is not and will never be a solution. Fossil fuels 

will remain an important bridge of energy source as our country 

moves forward to cleaner energy sources. But as we move forward, 

we should maintain focus on making carbon energy production as 

clean as possible through technology and effective use of regulation. 

The EPA has used the Clean Air Act to improve the lives of millions of Americans and reduce harmful emissions. The Clean Air 

18 

Act has worked and we should continue building on this landmark 

legislation, not slowly dismantle it. And by the way, I suggest that 

my colleagues embrace carbon sequestration. With that, I would 

like to recognize my colleague from Pennsylvania, Mr. Doyle. 

Mr. DOYLE. I want to thank my friend for yielding time. I also 

want to thank Congressman Rothfus from my home state for appearing before our committee today and for his work on this important issue. I have seen these coal refuse piles first hand and I have 

witnessed significant benefit processing waste coal can provide to 

these sites. 

Our State, Pennsylvania, is home to nearly three-quarters of the 

active coal refuse power plants in the country. There are more than 

5,000 coal refuse sites that cover approximately 184,000 acres 

throughout our state and pose a significant threat to local habitats 

and communities. 

As many of you on this committee know, I’m an all-of-the-above 

guy when it comes to our energy portfolio and coal refuse power 

plants provide an additional benefit in that they improve the local 

environment. I think they are an important part of Pennsylvania’s 

power system and help ensure we are good stewards of our land 

and water. This bill would certainly help ensure their continued 

use in years to come. I would note to my colleagues that this bill 

is also significantly improved from previous versions. 

Cleaning up these waste coal piles is a major priority for our 

state and we need to figure this difficult problem out. However, I 

also want to ensure that we are protecting our air, not playing favorites when it comes to picking power sources and preserving important regulations in the regulatory process. 

I still have some remaining concerns on aspects of these bills. 

But I want to thank Congressman Rothfus for highlighting the importance of this pressing issue for Pennsylvania that is before our 

committee today, and I yield back. 

Mr. WHITFIELD. The gentleman yields back. 

At this time, Mr. Upton is not here so I would like to recognize 

the gentleman from Ohio, the author of the BRICK Act, Mr. Johnson, for 5 minutes. 

OPENING STATEMENT OF HON. BILL JOHNSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. JOHNSON. Well, thank you, Mr. Chairman, for holding this 

very important hearing today to examine both the legislation that 

my colleague, Mr. Rothfus, has introduced and the BRICK Act, a 

discussion draft that addresses the EPA’s national emissions standards for the brick and structural clay products manufacturing industry, which was finalized last September 24th of 2015. Simply 

put, the BRICK Act would allow for the consideration and completion of any judicial review regarding the EPA’s emission standards 

for the brick industry before requiring compliance. 

Mr. Chairman, I want to take just a moment to illustrate how 

the EPA’s new regulation will affect the industry and why the 

BRICK Act is so desperately needed. The majority of U.S. brick 

plants are small family-owned operations. They are often located in 

small communities that depend on the plant for good-paying jobs. 

Whitacre Greer Brick, located in Alliance, Ohio, is just such a comVerDate Nov 24 2008 14:20 May 06, 2016 Jkt 037690 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-113 CHRIS
19 

pany that fits that description. Whitacre Greer employs 75 people, 

offers education and training benefits and health insurance to its 

employees. To comply with the EPA’s requirements, Whitacre 

Greer will be forced to borrow millions of dollars to pay for the required control equipment. 

Many brick companies are already struggling to find the capital 

for plant modernization projects. I can’t imagine how difficult it 

will be for these companies like Whitacre Greer to secure the needed investments to pay for new control equipment—equipment that 

provides zero return on investment. 

Additionally, and this is an important point, the EPA, as you 

mentioned, Mr. Chairman, finalized a similar rule in 2003 that already required brick companies to spend millions of dollars on control equipment and the industry did that when that rule was implemented. A few years later, a federal court vacated that rule, 

making that investment useless. Unfortunately, the brick industry 

couldn’t roll back the clock and recover the investment they had 

made and, worse yet, the EPA’s new emission rules used reductions 

achieved by the vacated rule as the baseline for further emission 

reduction requirements. 

Now, I don’t think anybody here would disagree. I see the need 

to protect public health and the environment. But it is unfair that 

the agency’s new rule does not give the industry credit for the 

emission reductions that it has already achieved. This lack of consideration in addition to other EPA rule requirements places the 

industry’s very survival in jeopardy. 

The brick industry is a part of the American fabric. It is a part 

of American culture. It has built some of the most iconic buildings 

and towns in existence today. We must make certain our regulations and laws preserve this industry, not end it. The BRICK Act 

will help keep this important industry alive. 

Unless we want to start constructing buildings out of sticks and 

straw, we better wise up. We, collectively, all across this country, 

here in the House, in the Senate, in the federal agencies like the 

EPA, need to act responsibly on this issue. 

And with that, Mr. Chairman, I will look forward to discussing 

the issue. 

Mr. SHIMKUS. Would the gentleman yield? Would the gentleman 

yield? 

Mr. JOHNSON. Yes, I certainly will yield. 

Mr. SHIMKUS. Thank you. I just want to take this time to welcome Congressman Rothfus from Pennsylvania and especially on 

this piece of legislation. 

Congressman Doyle mentioned it. I also have a lot of sites that 

could be recycled. I think Keith proves to be a sound political mind 

and does due diligence and we are glad you finally get a chance to 

air this bill before the subcommittee and we want to welcome you. 

Likewise to my colleague and friend, Bill Johnson. He’s right. 

The brick industry is really mom and pop businesses that have operated and survived for many years. I would just remind my 

friends that the biggest damage to the health of our individual citizens is unemployment and no jobs. 

20 

And so our fight is to make sure that we can continue to provide 

good-paying jobs with health care benefits to our citizens before it 

is too late. With that, I yield back my time. 

Mr. WHITFIELD. Gentleman yields back. 

At this time, the chair recognizes the gentleman from New Jersey, Mr. Pallone, for 5 minutes. 

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

Mr. PALLONE. Thank you, Mr. Chairman. 

Today, we are considering two bills that undermine EPA air 

rules that are instrumental in protecting public health and the environment by reducing mercury and other hazardous air pollutants 

from power plants and other industrial sources. 

Let me start with H.R. 3797, the Satisfying Energy Needs and 

Saving the Environment Act, or SENSE Act. This bill would revise 

the mercury and air toxics, or MATS rule, and the cross-state air 

pollution rule, or CSAPR rule, to allow power plants that burn coal 

refuse to emit higher levels of sulfur dioxide and hydrogen chloride. 

Sulfur dioxide is known to cause adverse respiratory impacts and 

hydrogen chloride is corrosive to eyes and skin and can irritate the 

respiratory tract. 

Supporters of this bill will say that facilities that burn coal 

refuse are doing a good thing by cleaning up the environment and 

generating power. But I don’t think we are here today to debate 

that. Instead, we are here to consider whether the facilities that 

burn coal refuse should be given a free pass on complying with 

EPA rules to reduce certain air pollutants and I believe that is a 

very bad idea. Coal refuse plants are no different than other coal 

plants and therefore should be held to the same emission standards. 

Supporters of this bill have also argued that coal refuse plants 

deserve special treatment when it comes to these air rules. In the 

context of the MATS rule I would note that the EPA, the courts 

and the Senate, which considered a coal refuse-related amendment 

last January, have all reviewed and rejected the argument that 

they should be given special consideration. In the context of the 

CSAPR rule, the SENSE Act is unnecessary and I just think bad 

policy. The current rule uses a phased-in approach to achieve emission reductions where facilities receive emission allowances that 

decrease over time. The bill would shift a greater percentage of 

these emission allowances to coal refuse plants. EPA has a plan for 

how these allowances should be allocated to individual plants. But 

states also have the ability to submit their own plan for achieving 

the required emission reductions. What this means is the state, if 

it chooses, already has the power to give extra allowances to coal 

refuse plants as this bill would mandate. 

Beyond being unnecessary, this provision undermines the 

CSAPR trading system and creates inequities in the market. The 

SENSE Act picks winners and losers, tipping the scales in favor of 

coal refuse plants at the expense of all other plants within a state. 

Now, briefly turning to the other bill, the BRICK Act extends 

compliance deadlines until all legal challenges are resolved by the 

21 

courts. If this sounds familiar, that is because it is. We saw a similar provision in H.R. 2042, the Ratepayer Protection Act. 

We also had a similar discussion at our hearing on that bill when 

the witness pointed out that the current judicial process for delaying a rule ‘‘has withstood the test of time and ensures the courts 

will undertake a careful balancing of interests before granting a 

stay of agency action.’’ And she further explained that the blanket 

extension in the discussion draft would ‘‘create powerful incentives 

for frivolous litigation in an effort to stall and avoid compliance.’’ 

I do understand there are special circumstances related to this 

particular rule. The brick industry has made good faith efforts to 

work with EPA and to reduce their emissions. However, the litigation delay in the BRICK Act creates a very bad precedent, in my 

opinion. 

The bills we are considering today would undermine protections 

and set bad legislative precedence going forward and therefore I 

cannot support either of them, and I yield back. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Pallone follows:] 

PREPARED STATEMENT OF HON. FRANK PALLONE, JR. 

Thank you Mr. Chairman. Today, we are considering two bills that undermine 

EPA air rules-rules that are instrumental in protecting public health and the environment by reducing mercury and other hazardous air pollutants from power plants 

and other industrial sources. 

Let me start with H.R. 3797, the ‘‘Satisfying Energy Needs and Saving the Environment Act (or SENSE Act). This bill would revise the Mercury and Air Toxics or 

MATS rule and the Cross State Air Pollution Rule or CSAPR rule to allow power 

plants that burn coal refuse to emit higher levels of sulfur dioxide and hydrogen 

chloride. Sulfur Dioxide is known to cause adverse respiratory impacts; and hydrogen chloride is corrosive to eyes and skin and can irritate the respiratory tract. 

Supporters of this bill will say that facilities that burn coal refuse are doing a 

good thing by cleaning up the environment and generating power. We’re not here 

today to debate that. Instead we are here to consider whether facilities that burn 

coal refuse should be given a free pass on complying with EPA rules to reduce certain air pollutants. I believe that’s a very bad idea—coal refuse plants are no different than other coal plants and, therefore should be held to the same emissions 

standards. 

Supporters of this bill have also argued that coal refuse plants deserve special 

treatment when it comes to these air rules. In the context of the MATS rule, I would 

note that EPA, the courts, and the Senate—which considered a coal refuse-related 

amendment last January—have all reviewed and rejected the argument that they 

should be given special consideration. In the context of the CSAPR rule, the SENSE 

Act is unnecessary and just bad policy. The current rule uses a phased-in approach 

to achieve emissions reductions—where facilities receive emissions allowances that 

decreases over time. The bill would shift a greater percentage of these emissions allowances to coal refuse plants. EPA has a plan for how those allowances should be 

allocated to individual plants, but states also have the ability to submit their own 

plan for achieving the required emissions reductions. What this means is a state— 

if it chooses—already has the power to give extra allowances to coal refuse plants 

as this bill would mandate. 

Beyond being unnecessary, this provision undermines the CSAPR trading system 

and creates inequities in the market. The SENSE Act picks winners and losers, tipping the scales in favor of coal refuse plants, at the expense of all other plants within a state. 

Briefly turning to the other bill, the BRICK Act extends compliance deadlines 

until all legal challenges are resolved by the courts. If this sounds familiar, that’s 

because it is: we saw a similar provision in H.R. 2042, the Ratepayer Protection Act. 

We also had a similar discussion at our hearing on that bill, when a witness 

pointed out that the current judicial process for delaying a rule ‘‘has withstood the 

test of time, and ensures that courts will undertake a careful balancing of interests 

before granting a stay of agency action,’’ and she further explained that the blanket 

22 

extension in the discussion draft would ‘‘create powerful incentives for frivolous litigation in an effort to stall and avoid compliance.’’. 

I do understand there are special circumstances related to this particular rule. 

The brick industry has made good faith efforts to work with EPA and to reduce 

their emissions. However, the litigation delay in the BRICK Act creates a very bad 

precedent. I believe this issue can and should be resolved by the courts. 

The bills we are considering today would undermine protections and set bad legislative precedents going forward, and therefore I cannot support either of them. 

Thank you. 

Mr. WHITFIELD. Gentleman yields back and that concludes the 

opening statements. Like our friend from Illinois, I also want to 

welcome Keith Rothfus, a member of Congress from the Commonwealth of Pennsylvania, with us today. 

He is the author of the SENSE Act and has been—I know we 

have had many discussions about it. I know he has been talking 

to EPA about it and had discussions with other groups as well. 

So welcome, Congressman Rothfus, and you are recognized for a 

5-minute opening statement. 

STATEMENT OF HON. KEITH J. ROTHFUS, A REPRESENTATIVE 

IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA 

Mr. ROTHFUS. Thank you, Mr. Chairman, and thank you for—— 

Mr. WHITFIELD. And be sure to turn the microphone on. 

Mr. ROTHFUS. Thank you, Mr. Chairman, and thank you for 

holding this hearing today on two vitally important pieces of legislation, the SENSE Act and the BRICK Act. I also want to thank 

Vincent Brisini, director of environmental affairs at Olympus 

Power, and Dennis Beck, the chairman of the Western Pennsylvania Coalition for Abandoned Mine Reclamation, for coming to 

Washington today to provide additional insight on my legislation. 

The SENSE Act, which stands for Satisfying Energy Needs and 

Saving the Environment Act, is a common sense solution that allows innovative coal refuse-to-energy facilities to generate affordable reliable energy and continue their essential environmental remediation work in a responsible manner. 

As many of you know, the coal industry has been a central power 

to Pennsylvania’s economy for many years. Unfortunately, historic 

mining activity littered Pennsylvania and a few other states with 

large piles of coal refuse, sometimes called waste coal, which is essentially a mix of lower quality coal, rocks, and dirt that remain 

after the mining and processing of coal. Before technology was invented to make use of this material, it accumulated in open spaces 

alongside cities and towns close to schools and neighborhoods and 

in fields across coal country. 

This led to a number of environmental problems that still plague 

affected communities. These include air pollution, damage to vegetation and wildlife, and water pollution from acid mine drainage. 

I have been to several of these sites and seen firsthand the environmental danger they pose. Coal refuse piles can catch fire and 

burn for unacceptably long periods of time, polluting nearby neighborhoods. Runoff from these sites can turn rivers orange and leave 

them devoid of life. According to Pennsylvania’s environmental regulator, it would cost roughly $2 billion to clean up this hazard in 

my state alone. 

23 

This is a significant challenge, but is one that Pennsylvanians 

and others in coal country are prepared to meet. The coal refuseto-energy industry has been a leader in solving this problem. With 

advanced technology, this industry has been able to use this previously worthless material to generate affordable and reliable energy. In the process, they have removed over 200 million tons of 

coal refuse in Pennsylvania alone and remediated many formerly 

polluted sites. Thanks to the hard work of the dedicated people in 

this industry, landscapes have been restored, rivers and streams 

have been brought back to life, and towns across coal country have 

been relieved of unsafe and unsightly waste coal piles. 

It is important to note that private sector leadership on this 

issue has saved taxpayers millions of dollars in cleanup costs. It 

has also created hundreds of family-sustaining jobs in areas that 

have been economically distressed for many years. These jobs and 

the communities they support are at risk today, unless we stand 

to defend them. 

The work that the coal refuse-to-energy industry has done is remarkable and it represents an environmental success story that 

should transcend partisan lines. Despite my best efforts to advocate 

for a compromise, the Environmental Protection Agency has refused to adjust the regulations that threaten to shut down much 

of the coal refuse-to-energy industry and thus imperil its vital remediation efforts. The intensification of two existing rules—the 

Mercury and Air Toxic Standards, or MATS rule, and the CrossState Air Pollution Rule, or CSAPR—is especially concerning. 

Though all coal refuse fire-powered generators can meet the mercury standard under MATS—let me reemphasize that—the coal 

refuse fire-powered generators can meet the mercury standards 

under MATS, many facilities will be unable to meet the rule’s new 

hydrogen chloride or sulfur dioxide standards. The SENSE Act provides operators with alternative compliance standards that are 

strict but achievable. 

Similarly, although coal refuse fire-powered generators were provided sufficient sulfur dioxide allocations in phase one of the 

CSAPR’s implementation, these facilities were allocated insufficient 

credits in phase two, which is set to begin in 2017. The SENSE Act 

seeks to provide coal refuse fire-powered plants with the same allocation levels in phase two as in phase one. My bill also contains 

provisions to ensure that this change does not simply create a profit center for the industry. Credits allocated as a result of the 

SENSE Act’s implementation must go to covered plants, specifically those that use bituminous coal refuse and they cannot be sold 

off to other operators. 

The SENSE Act represents a common-sense compromise between 

the legitimate goals of controlling pollutants emitted from coal 

refuse-to-energy facilities and ensuring that regulations imposed on 

the industry are fair and allow vital remediation at work to continue. The people who live near coal refuse piles and all the communities downstream of these hazards expect us to find a solution. 

The industrious men and women at the power plants, on the coal 

refuse piles and throughout the supply chain are counting on us to 

protect their livelihoods. We owe it to all of them to pass the 

SENSE Act. 

24 

Again, I thank the committee for holding this important hearing 

and I welcome any questions that you may have. 

[The prepared statement of Mr. Rothfus follows:] 

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Mr. WHITFIELD. Well, Congressman Rothfus, thank you very 

much for being with us today, and as much as we would like to ask 

you questions we are going to dismiss you because we have another 

panel and we are going to be asking them a lot of questions. 

But I want to thank you again for your leadership and bringing 

this to our attention and we all look forward to working with you 

to try to move this legislation to provide some assistance. I thank 

you very much. 

Mr. ROTHFUS. Thank you, Chairman. 

Mr. WHITFIELD. Thank you. 

Now, at this time I would like to call up the witnesses on the 

second panel. 

We have five of them. We have Mr. Davis Henry, who is the 

president and CEO of Henry Brick. We have Mr. Creighton 

McAvoy, who is president of McAvoy Brick Company. 

We have Mr. Vincent Brisini, who is the director of environment 

affairs for Olympus Power and we have Mr. Dennis Beck, chairman 

of the Western Pennsylvania Coalition for Abandoned Mine Reclamation, and we have Mr. John Walke, who is senior attorney and 

clean air director at the Natural Resources Defense Council. 

So if you all would come forward and have a seat. I want to 

thank all of you for joining us this morning to discuss these two 

pieces of legislation. 

We know that all of you have your expertise and we, as a committee, look forward to learning more about both of these bills and 

the impacts that they might have. 

So, Mr. Brisini, you will be first and so everyone make sure their 

microphones are on when you do speak so that our transcriber here 

can get everything down. 

But, Mr. Brisini, you are now recognized for five minutes for 

your opening statement. 

STATEMENTS OF VINCENT BRISINI, DIRECTOR, ENVIRONMENTAL AFFAIRS FOR OLYMPUS POWER; DENNIS BECK, 

CHAIRMAN, WESTERN PENNSYLVANIA COALITION FOR 

ABANDONED MINE RECLAMATION; JOHN WALKE, SENIOR 

ATTORNEY AND CLEAN AIR DIRECTOR, NATURAL RESOURCES DEFENSE COUNCIL; DAVIS HENRY, PRESIDENT 

AND CEO, HENRY BRICK; CREIGHTON ‘‘BUTCH’’ MCAVOY, 

PRESIDENT, MCAVOY BRICK COMPANY 

STATEMENT OF VINCENT BRISINI 

Mr. BRISINI. Good morning. I would like to thank the chair and 

the committee for holding this hearing on the SENSE Act. 

My name is Vince Brisini and I am the director of environmental 

affairs for Olympus Power. Today, I am testifying on behalf of 

ARIPPA, the trade association of the coal refuse-to-energy industry. 

ARIPPA members’ facilities remove and convert coal refuse from 

historic mining activities into environmentally beneficial electricity. 

In fact, our electricity is recognized in the Pennsylvania Alternative 

Energy Portfolio Standards Act. Coal refuse is a material that has 

been left behind by historic coal mining activities. This includes the 

mining and the processes which separated the coal from rock and 

other carbonaceous material. The picture on the screen shows a 

30 

coal refuse pile on the left and on the right the mine acid drainage 

that can emanate from these piles. If you look at the coal refuse 

pile picture you can see the mine acid drainage-polluted stream on 

the right and at the bottom of the coal refuse pile. The pink areas 

on the pile are evidence that this pile has previously burned. 

Where I come from, that material is called red dog. 

The next likely question is how much coal refuse is out there. No 

one really knows. But it is estimated to be about 2 billion cubic 

yards in Pennsylvania alone and that is split about evenly between 

the bituminous region in the western part of the state and the anthracite region in the eastern part of the state. This map shows the 

abandoned mine lands and the location of the coal refuse-to-energy 

plants in Pennsylvania. It also shows the watersheds impacted by 

mining-affected lands including coal refuse piles. 

Everyone downstream of mining-affected lands is impacted by 

the surface water pollution from these areas. The coal refuse-to-energy process consists of three basic steps. The coal refuse is 

screened and removed from the site and then hauled to the coal 

refuse-to-energy plant. The coal refuse is then burned with limestone in a fluidized bed combuster boiler to make steam to produce 

electricity and that results in ash that meets the criteria for beneficial use in Pennsylvania and that ash is returned to the miningaffected lands and used to remediate and reclaim those areas. 

The coal refuse-to-energy process is the only process that permanently addresses the problems associated with coal refuse. Some 

key industry metrics in Pennsylvania are 1,500 megawatts of electric generating capacity, 11 million tons of coal refuse removed annually for fuel, over 205 million tons of coal refuse used so far for 

fuel, thousands of acres of land remediated and reclaimed, hundreds of miles of streams improved by elimination of acid mine 

drainage, 1,200 direct jobs with a payroll in excess of $84 million 

per year, 4,000 indirect jobs for project management, engineering, 

operations, transportation, logistics and skilled trades, property tax 

revenues to support local schools and communities and over $10 

million per year of business per facility into their local economy— 

collectively, $150 million per year into Pennsylvania’s economy. 

The regulatory issues being addressed by the SENSE Act are the 

Cross-State Air Pollution Rule and the Mercury and Air Toxic 

Standards. 

While ARIPPA has engaged in both verbal and written communications with EPA regarding the issues associated with coal 

refuse-fired boilers, EPA has failed to recognize the technical differences between coal-fired and coal-fired refuse boilers and the 

unique multimedia benefits the coal refuse-fired boilers provide to 

Pennsylvania. The SENSE Act, on the other hand, provides for 

very targeted appropriate achievable emission control requirements 

for certain of these units. Specifically, under the cross-state air pollution rule the SENSE Act continues phase one sulfur dioxide allowance allocations to existing bituminous coal refuse-fired units 

only. But it preserves EPA’s sulfur dioxide emissions budget by reallocating a percentage of allowances from retired units in two 

plants that were converted from coal to natural gas. However, it 

does not allow the transfer of these sulfur dioxide allowances to 

other units and upon retirement any banked sulfur dioxide allowVerDate Nov 24 2008 14:20 May 06, 2016 Jkt 037690 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-113 CHRIS
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ances allocated under the SENSE Act must be surrendered.These 

caveats prevent an economic windfall to these bituminous coal 

refuse-fired units and most likely they result in less sulfur dioxide 

being emitted into the environment. 

In the case of the Mercury and Air Toxic Standards, the SENSE 

Act adds an additional performance-based standard of 93 percent 

sulfur dioxide removal to the current acid gas standards for demonstration of compliance. This again provides for the necessary relief for the continued operation of the bituminous coal refuse-fired 

plants. 

The SENSE Act is a reasonable and targeted effort to address 

the errors that EPA has made in CSAPR and MATS and is very 

important to ensuring that these coal refuse-fired facilities remain 

able to conduct their business of reclaiming and recovering these 

mining-affected lands and providing high quality family-sustaining 

jobs in the communities in which these facilities are located. 

ARIPPA would like to thank Rep. Rothfus and we urge you to 

support the SENSE Act and its passage in this session of the U.S. 

House of Representatives. 

[The prepared statement of Mr. Brisini follows:] 

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[The addendum to Mr. Brisini’s testimony has been retained in 

committee files and can be found at: http://docs.house.gov/meetings/if/if03/20160203/104366/hhrg-114-if03-wstate-brisiniv20160203.pdf.] 

Mr. WHITFIELD. Thank you very much, Mr. Brisini. 

And Mr. Beck, you are now recognized for 5 minutes. 

STATEMENT OF DENNIS BECK 

Mr. BECK. Usually I don’t need a microphone but I’ll tone myself 

down today. 

Good morning Mr. Chairman, and the rest of the committee 

members. My name is Dennis Beck. I am president or chairman of 

the Western Pennsylvania Coalition for Abandoned Mine Reclamation, otherwise known as WPCAMR. We have a sister organization 

called EPCAMR, which is the eastern Pennsylvania coalition. 

The coalition appreciates the opportunity to appear today and 

share our views and concerns on the effects of the waste coal-toenergy plants in restoring the degraded environment in coal-producing areas, especially in Pennsylvania. I am expressing support 

for House bill 3797, the SENSE Act, which will help establish the 

standards for EPA to regulate waste coal-to-energy plants. Our efforts focus on returning abandoned mine lands and waste coal piles 

to productive use, improving water quality, and reducing hazards 

to health and safety, thus improving the local economy and enhancing the quality of life. 

Today, the runoff from these waste coal piles is polluting our surface and ground water supplies for several miles around the piles 

with other numerous impacts on our environment. Chemicals such 

as mercury, selenium, chromium, lead, aluminum, iron, and manganese are seeped out of these coal piles into our water supplies. 

Where I live in Cambria County we are at the head waters of the 

Ohio River and Pennsylvania is also part of the head waters for the 

Chesapeake Bay. So any pollution that rolls off these coal piles affects everyone downstream. Changes in the PH in these streams 

destroys aquatic life from the macro invertebrates to fish. None 

survive in it, from some of the pictures that Vince had shown. 

Here is an important part: if left alone, many of these piles will 

self-ignite. We have got 40 piles in the state of Pennsylvania that 

are burning at this time. In Lackawanna County, in 2014 Pennsylvania’s DEP had to extinguish that pile. It cost them over $2 

million to extinguish the one pile that was burning. 

The three coal generation plants in my county have significantly 

improved and impacted our county. They have burned over 25 million tons of waste coal while supplying electricity to the 280,000 

residences. The three plants employ 200 people directly, and indirectly 300 more. They have reclaimed over 525 acres of abandoned 

mine lands, contributed over $25 million to the local community 

since they have been put in place and have won numerous state 

and environmental and safety awards since 1992. 

I just want to talk a little bit about two of the reclamation sites 

in Cambria County. In Revloc, the Blacklick Creek was a dead 

stream for several decades. That has been restored. Over 100 acres 

of land have been restored. The south branch of the Blacklick is 

now designated as a cold water fishery by the Pennsylvania Fish 

39 

and Boat Commission and it is eligible for fish stocking for the 

local fishermen. 

In Washington township, there has been 3.5 million tons of waste 

coal removed. In its place, there are four ball fields, two and a half 

miles of walking trails, a community hall, a coal miners monument 

and a bell tower. It is now a gathering place for the entire community both young and old, improving the vitality of a once dying 

community. A contractor has also subdivided numerous acres for 

housing growth in that area. 

Another one of these big projects that was undertaken is called 

the Big Gorilla project in northeast Pennsylvania. It cost DEP $4.5 

million to reclaim those acres, and they estimated if the waste coal 

plants had not come in to take the waste coal out of there that reclamation cost would have been $80 million and it cost $4.5 million 

to get it cleaned up and restored. 

I want to look at net benefits. Several people have talked about 

the benefits of cleaning these sites up and stuff that we have put 

on it. I have mentioned a couple of them. Let me just mention what 

would happen if they are not cleaned up. There is over 5,000 piles 

of waste coal left in Pennsylvania. There are 40 of them burning 

at this time. If they are left alone, numerous more are going to selfignite and what comes off of those piles in the smoke and the 

steam that come off of there are, again, your mercury, your sulfates, your chlorides, hydrogen sulfide. You have polycyclic 

organics, which are phenols, coming off of there in that smoke. Furthermore, let me mention this one also. 

EPA has indicated from past statements that because of the 

unique environmental benefits that coal refuse-fired electric generating units provide, these units warrant special consideration so as 

to prevent the amended NSPS, the new source performance standards, from discouraging the construction of future coal refuse-fired 

plants in the U.S. and that is in the ARIPPA report that was updated. It is a white paper updated on October 5th of 2015. 

We feel it is not equitable and one regulation does not fit all the 

plants the same. It’s an over-burdening and unfair regulation and 

we support Rep. Rothfus’ House bill that will examine the EPA regulation on emissions of these waste coal plants. 

We feel that waste coal plants provide a greater benefit to the 

environment, communities and residents of the unregulated coal 

mining regions of the past. The amount of pollution removed and 

streams restored to new life must be considered as greatly beneficial to the people of the United States. 

Mr. WHITFIELD. Mr. Beck, excuse me. I have let you go over 

about a minute and a half so—— 

Mr. BECK. Three lines. Three lines. 

Mr. WHITFIELD. OK. 

Mr. BECK. These waste plants are a great example of ingenuity, 

cutting-edge technology and concern for the environment. The positive impact of the waste coal burning plants include enhancements 

on land, water, air, living organisms as well as social, cultural, and 

economic environments. 

And thank you, Mr. Chairman. 

[The prepared statement of Mr. Beck follows:] 

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Mr. WHITFIELD. Thank you so much. 

Mr. Walke, welcome back. We appreciate your being here this 

morning. You’re recognized for 5 minutes. 

STATEMENT OF JOHN WALKE 

Mr. WALKE. Thank you, Chairman Whitfield and members of the 

committee. It is good to be back. 

My name is John Walke and I am clean air director and senior 

attorney for the Natural Resources Defense Council, a nonprofit organization of scientists, lawyers and environmental specialists 

dedicated to protecting public health and the environment. 

H.R. 3797, the Satisfying Energy Needs and Satisfying the Environment Act, is a flawed bill that would weaken air pollution 

standards for waste coal plants and increase dangerous and deadly 

pollution under two of the most important clean air rules ever 

adopted for coal-burning power plants. I am not here to dispute or 

to debate beneficial uses of waste coal to energy production, as 

Congressman Pallone noted. H.R. 3797 will, however, increase 

emissions of harmful sulfur dioxide and particulate matter pollution as well as hazardous air pollution in states with coal plants. 

This will impose additional avoidable health hazards on Americans. 

My oral testimony will make four basic points. 

First, H.R. 3797 picks winners and losers under EPA’s signature 

interstate air pollution program, the cross-state rule. It does so by 

favoring waste coal power burning—waste coal power burning 

plants at the expense of all the other in-state power plants that 

generate electricity with other types of coal or oil. H.R. 3797 even 

deprives some of these other coal plant operators of valuable economic assets to which they are entitled under current law. This political favoritism upends the neutral performance-based legal system that Congress has maintained for interstate air pollution for 

39 years. H.R. 3797 deprives valuable allowances from non-waste 

coal plant operators that make cleaner decisions. This deters cleaner generation and penalizes other in-state coal burning power plant 

operators. H.R. 3797 penalizes the coal plant operators that do not 

burn waste coal by reducing valuable sulfur dioxide allowances 

that the operator is entitled to hold or trade or sell under current 

law. This especially harmful element of the bill has the unjustified 

effect of rewarding dirtier operation by waste coal plants and penalizing less polluting decisions by coal plant operators to switch 

to natural gas or cease operation. Indeed, were this legislation to 

become law the bill would create immediate disincentives to 

repowering coal units to natural gas or shutting down older inefficient units. This is not good public policy. 

Second, the bill attacks state rights under the Clean Air Act. The 

legislation deprives state officials of the flexibility and prerogative 

to determine from which in-state sources sulfur dioxide reductions 

are best secured to comply with the cross-state rule and how to 

achieve those reductions most effectively, equitably, and cost effectively. The legislation would take control away from states to make 

these basic decisions for the first time in the 39-year history of the 

Clean Air’s program. Remarkably, the bill even goes on to place the 

U.S. EPA administrator in charge of decisions that the Clean Air 

Act today reserves to states. If state officials in Pennsylvania or 

47 

West Virginia, for example, wish to incentivize the waste coal energy industry, they may do so today under current law. State officials may grant more sulfur dioxide allowances to waste coal plant 

operators from the state’s total emission budget under the crossstate rule. There is no need to pass legislation like this to accomplish that. Indeed, the bill would paradoxically deny state officials 

the flexibility and authority that they enjoy under today’s law. 

Third, the bill allows unhealthy levels of sulfur dioxide pollution 

to increase above a state’s total budget level, worsening air quality 

in upwind and downwind states. Due to a fatal flaw in the bill discussed in my written testimony, there is no constraint in the real 

world on the sulfur dioxide emissions exceeding a state’s overall 

pollution budget. The result would be more pollution in upwind and 

downwind states. 

Fourth and finally, the bill harms Americans’ health and air 

quality by letting waste coal plants emit excessive levels of dangerous hazardous air pollution. It adds an alternative, more lax 

emission standard for sulfur dioxide emissions to the two more protective standards in the rule already. The EPA has noted that some 

waste coal plants already are meeting either the rule sulfur dioxide 

standard or hydrogen chloride standard or both. Others will do so 

by April of this year after seeking compliance extensions and installing available pollution controls to meet the standards. When 

waste coal plants owners filed lawsuits challenging the mercury 

rule, claiming it was ‘‘virtually impossible to meet the acid gas and 

sulfur dioxide limits,’’ the court had little trouble rejecting these arguments unanimously. The judges pointed to evidence showing that 

eight out of 19 waste coal units with data already could meet the 

rule’s acid gas standard or alternative sulfur dioxide standard. Indeed, the court noted that some of these already compliant plants 

are among the best performers—let me repeat that—among the 

best performers in achieving hydrogen chloride reductions among 

all coal-burning power plants around the country. 

Finally, H.R. 3797 would allow higher levels of sulfur dioxide 

emissions and hazardous air pollution. This outcome is harmful for 

Americans living in states with these coal plants and harmful to 

Americans living downwind from these plants. 

This too is bad public policy and I urge members of the committee not to approve the bill. Thank you. 

[The prepared statement of Mr. Walke follows:] 

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Mr. WHITFIELD. Mr. Walke, thank you very much. 

And, Mr. Henry, you are now recognized for five minutes. 

STATEMENT OF DAVIS HENRY 

Mr. HENRY. Chairman Whitfield, distinguished members of the 

subcommittee, good morning and thank you for inviting me to testify. 

Mr. WHITFIELD. Have you turned your mic on? 

Mr. HENRY. Sorry about that. Chairman Whitfield and distinguished members of the subcommittee, good morning and thank 

you for inviting me to testify on this important issue. 

My name is Davis Henry and I am the president of Henry Brick, 

which has manufactured clay brick in Selma, Alabama for over 70 

years. I represent the third generation of Henrys to operate this 

plant. I also currently serve as the vice chairman of the board for 

the Brick Industry Association, the national trade association that 

represents manufacturers and distributors of clay brick and pavers. 

I am here today to speak on behalf of both my company and my 

industry. 

Henry Brick currently employs 58 people including our manufacturing, sales, and support staff. That number hopefully will grow 

this year to about 95 when we bring plant two back online. It has 

been idle since June of 2008 due to the economy. As you can imagine, the last 8 years have been a very trying time for our company 

as well as the rest of the brick industry. We are committed to doing 

our share to protect our environment, but with a finite amount of 

resources we need to be sure that we know what is required of us 

and that the expectations will not change once the resources are 

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

a previous change in regulation and I want to ensure that my company and all remaining brick companies do not fall victim to this 

again. 

In 2003, the first maximum achievable control technology, or 

MACT, standard was promulgated for our industry. This rule applied only to major sources of hazardous air pollutants, or HAP, 

and only to the larger kilns in our industry. For our industry with 

only two pollutants emitted in any large amount, the only definition of major source that really applies is a facility that has the potential to admit ten tons or more of any single HAP. Henry Brick 

was a major source of HAP in 2003 and had two kilns considered 

to be large by the EPA. We had until 2006 to install and begin operating control devices to meet the limits, which we did. We installed limestone-based systems called DLAs, or dry lime absorbers, on both our kilns at a total capital cost of about $1.5 million. 

In 2007, almost a full year after our industry achieved compliance with the 2003 MACT, it was vacated by the courts for deficiencies. Unfortunately, most of us, including Henry Brick, were 

unable to turn off our control devices because our existing air permits would not allow us to stop operating the controls. The cost to 

operate the control devices over the last eight plus years has been 

significant as well. During the compliance time for the 2003 Brick 

MACT, the number of controlled kilns in our industry soared from 

just over 20 to more than 100 kilns. 

62 

In 2008, the EPA began developing the replacement MACT that 

eventually became the 2015 Brick MACT. To develop the standard, 

the EPA looked at the best performing kilns including those brand 

new controls that would not have been in place except for the 2003 

Brick MACT to establish the limits. Unfortunately, like many who 

installed DLAs, our kilns could not meet these new more stringent 

limits. We recently conducted a stacked test at our facilities that 

confirmed our inability to meet the limits for two of the three HAP 

categories. We cannot meet the mercury limit nor the PM nonmercury metals limit. To comply with the 2015 Brick MACT, we believe we would need to take out the DLAs we installed in 2006 and 

install a new system called a dry injection fabric filter. The EPA 

estimates this would cost us about $3.8 million per kiln, almost $8 

million to our company. There is an alternate solution that may be 

as little as $1.65 million but it has not been proved and we don’t 

know how that will pan out. The EPA’s estimated emission reduction for an average kiln for mercury metals is less than 400 pounds 

per year for an uncontrolled source. So our incremental reduction 

from our control kilns would be even less. 

There is a way to avoid MACT compliance. In fact, the EPA’s 

first listed option for complying with the rule is to avoid the rule 

by becoming a synthetic matter or synthetic area source. To become 

a synthetic area source a facility accepts federally enforceable limits that ensures they never emit more than the ten tons per year 

that makes you a major source. If you are like Henry Brick and 

have both of your kilns controlled with air pollution control devices, 

the EPA assumes that you can become a synthetic area source at 

little or no cost. If you follow EPA’s approach to assigning cost, you 

would assign an annual cost of less than $20,000 per year. 

Unfortunately, our most recent tests also demonstrate that we 

cannot become a synthetic area source as we currently operate. We 

have some issues with raw materials and other things but it is 

going to cost money to solve these issues and it will be a lot more 

than $20,000. 

While compliance with this regulation alone threatens small 

businesses like Henry Brick, if you consider that this is the only 

regulation we face correctly identifying the appropriate place to 

spend our finite sources is critical to our survival. For example, the 

Occupational Safety and Health Administration is about to finalize 

a new permissible exposure limit for silica dust that, if promulgated as it was proposed, will add almost another million dollars 

in equipment that my company may need to finance and install to 

remedy a nonexistent silicosis threat in brick plants. Regulations 

like these threaten the continued existence of many small companies in our industry including mine. In fact, compliance with both 

of these rules at the same time could devastate much of our already threatened industry where 75 percent of the companies are 

small businesses. 

Henry Brick simply cannot afford to try and hit another potentially moving target of Brick MACT compliance. We acted in good 

faith to comply with the 2003 Brick MACT and now face some of 

the steepest costs in the industry because we may need to take out 

our DLAs and replace them with this. We need the BRICK Act to 

ensure that we are not required to invest again until we know that 

63 

the standard is not going to change. This is not a hypothetical 

issue for Henry Brick. It is real. It has happened to us. Please do 

not let it happen again. 

Thank you for introducing this bill and for taking the time to listen to me today. I am happy answering any additional questions 

you may have. 

[The prepared statement of Mr. Henry follows:] 

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[The addendum to Mr. Henry’s testimony has been retained in 

committee files and can be found at: http://docs.house.gov/meetings/if/if03/20160203/104366/hhrg-114-if03-wstate-henryd20160203-u2.pdf.] 

Mr. WHITFIELD. Thank you very much. 

Mr. McAvoy, you are recognized for 5 minutes. 

STATEMENT OF CREIGHTON MCAVOY 

Mr. MCAVOY. Thank you. 

Chairman Whitfield and distinguished members of the subcommittee, good morning and thank you for inviting me to testify 

on this issue that could have potentially devastating consequences 

to my company and to my industry. 

My name is Creighton McAvoy. I am president of the McAvoy 

Brick Company, which has manufactured clay brick and pavers in 

Phoenixville, Pennsylvania for over 120 years. However, my family 

history with brick making goes back five generations to 1866 when 

my grandfather started a brick plant in Philadelphia with his 

brother-in-law. He eventually started two more brick yards in 

south Philadelphia with his sons and in 1895 he and his sons started a new corporation to make vitrified street pavers in 

Phoenixville. We are still making brick on that site today. 

In 2006, McAvoy Brick employed 26 hourly union employees and 

six salaried employees working year round and had sales of over 

$5.5 million. In 2012, due to the effects of the Great Recession on 

our industry, McAvoy Brick sales bottomed out at just under $2.5 

million and we employed four salaried employees and 20 hourlies, 

most of which were laid off 5 to 6 months of that year. Last year, 

business slightly improved to just under $2.8 million in sales and 

employment increased to five salaried employees and 21 hourly employees, most of which were employed over 8 months. Throughout 

all this downturn, McAvoy Brick has been able to pay all its bills 

and for the most part stay in the black. As you can see, we are a 

very small business, even for the brick industry. 

I am here today because while we were not required to put on 

controls in the last round of this regulation, it appears we will need 

to under this new rule. We are concerned that this regulation could 

become the moving target that the last Brick MACT did and that 

regulatory uncertainty could cripple my ability to remain in business. We are here to ask your help to ensure that what happened 

to companies like Henry Brick does not happen again. We believe 

the BRICK Act can give us this certainty we need. 

I am not only here on behalf of my company; I am here on behalf 

of my industry, as I serve on the board of directors of the Brick Industry Association. Approximately 75 percent of the companies in 

the brick industry are small businesses like McAvoy Brick. They 

have been making brick for a hundred years or more and have 

been good employers and neighbors in their local communities. Our 

industry is committed to do our share and doing the right thing for 

our employees, our vendors, our customers and our community. 

However, as our industry continues to struggle to come out of the 

Great Recession, we, like all industries, have limited resources. It 

is imperative that these limited resources be used judiciously and 

on the most important issues. It is important that there is some 

69 

benefit to every dollar spent and that the money not be spent needlessly or prematurely. 

We were actually one of the fortunate companies when it came 

to the 2003 Brick MACT. As we were able to take a production 

limit from 12 tons of brick per hour through our kiln down to just 

below 10 tons per hour, making our kiln a small kiln and not subject to those regulations. That did not come without a cost, as we 

could have sold some of the product from that surrendered capacity 

in the few years before the recession. However, we were still better 

off than what compliance did to our fellow brick manufacturers 

with large kilns. 

In 2015, the 2015 Brick MACT does include some of the innovative requirements including health-based standards for over 99 percent of the hazardous air pollutants emissions from our industry’s 

kilns. Unfortunately, the requirement for the remaining 1 percent 

emissions, mercury and nonmercury metals, will require the same 

multimillion dollar controls that would have been required before 

the health-based standards were conceived. 

Under the 2015 Brick MACT, we will likely be required to install 

controls on our kiln. We will be conducting tests to determine our 

specific situation. According to EPA’s cost estimates, they expect 

that we will install and operate a control device that will cost approximately $1.5 million and become a synthetic minor source, thus 

avoiding the Brick MACT requirements. This control device is the 

same one Henry Brick installed on their kilns. If that control is incapable of helping us get out of this rule, as it was incapable for 

Henry Brick, we believe we will have to install a control system 

that EPA estimates at costing $2.7 million to control three to five 

pounds of mercury and 100 to 200 pounds of metals each year. We 

are simply not sure anyone will loan us the money to purchase 

these controls or that we will be able to pay this money back, particularly if it is for the more expensive system that has never been 

demonstrated to work on a brick kiln emission. 

While we did not have experience complying with control limits 

for the 2003 Brick MACT, another small company similar to ours 

does have experience trying to borrow money from a financial institution. In their case, the money was for renovations at one of their 

kilns, an investment that would make them more efficient and 

more productive. They spent the last 2 years trying to obtain financing for a renovation of one of their kilns. This renovation 

would reduce their energy cost by approximately $500,000 per year 

and it took two years to find a financial institution willing to lend 

them the money. That company is one of the few brick companies 

to have had steady profit since 2007. Their financial status was 

very good for all those loan applications with plenty of collateral. 

However, it still took two years to find an institution willing to 

lend them the funds. 

Mr. WHITFIELD. Mr. McAvoy, I let you go over about 2 minutes. 

If you would summarize your testimony. 

Mr. MCAVOY. You may think that the loss of one small brick 

company will not make any difference in our overall economy. However, if McAvoy Brick is required to close their doors, more than 

$2.8 million will be lost from our local economy. We pay over $1 

million in wages for 26 families. Many of these employees will have 

70 

difficulty finding other employment. Basically, we are really happy 

that this legislation has been introduced and we hope that it will 

able to be passed. I thank the committee for allowing me the time 

to speak and I will be more than happy to answer any question at 

this time. 

[The prepared statement of Mr. McAvoy follows:] 

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Mr. WHITFIELD. Well, thank you and I thank all of you for your 

testimony and at this time I recognize myself for 5 minutes for 

questions. 

Mr. Henry, how many employees do you have in your company? 

Mr. HENRY. Currently, 58. 

Mr. WHITFIELD. Fifty-eight. And you have 26 families, Mr. 

McAvoy? 

Mr. MCAVOY. Yes. 

Mr. WHITFIELD. Recently I was reading an article and this article 

happened to be talking about some environmental groups who basically were saying that the end justifies the means. And that struck 

a chord with me because you look at the Brick MACT of 2003, that 

regulation which was vacated by a federal court. You look at the 

Utility MACT. 

The Supreme Court recently found that rule to be legally flawed 

and remanded it back to EPA, and the day after the Supreme 

Court’s decision EPA said in a blog that the Supreme Court ruling 

was of no practical impact, stating that the majority of power 

plants are already in compliance with our regulation or well on 

their way to compliance. 

It is disturbing to me personally that EPA seems to be developing a pattern and they are doing the same thing with the Clean 

Air Act—I mean, the Clean Power Plan in which they—even Larry 

Tribe says it looks like you are burning up the Constitution what 

you’re doing here and now it is at the Supreme Court on whether 

or not there is going to be a stay to the implementation of this act 

or not. 

But they seem to be developing a pattern of they come forth with 

these regulations knowing full well the only avenue open to a company is to file a lawsuit or an association or groups to file lawsuits, 

knowing full well that that’s going to take a period of time and the 

deadline for meeting the regulation is going to expire before that 

can be decided in the courts. 

And so that is a disturbing trend and it seems to me that both 

of you in the brick industry are concerned about that with this 

2015 act that you are going to have to comply, you are going to 

spend the money and the lawsuits are going to be filed and you 

may end up winning but in effect it is a hollow victory. Would you 

agree with that comment or not? 

Mr. HENRY. Certainly. When we came into compliance in 2006 

with the original MACT, as I have stated, we spent a million and 

a half dollars. 

A year later it was vacated. We have had to operate those control 

devices since 2007 regardless of whether there was a MACT in 

place or not. So we have spent no telling how much money over 

that time operating them. 

Mr. WHITFIELD. Yes. 

Mr. HENRY. And now to be faced with having to replace those 

with new control devices that are exponentially higher in cost for 

only a 4 percent gain or reduction in emissions seems outrageous. 

Mr. WHITFIELD. We all recognize the Clean Air Act is a very important piece of legislation and I don’t think America has to take 

a back seat to anyone on clean environment and we can credit the 

Clean Air Act for it. But I do think we have to be concerned when 

76 

a pattern is developing where they are going so extreme on some 

of these regulations they cannot withstand legal challenge and yet 

the practical impact is it makes no difference because there is no 

avenue available. 

So I think that’s something we are all concerned about. Let me 

just ask you on the coal refuse issue and the BRICK, have you all 

had a lot of discussions with EPA about your particular problem? 

Mr. BRISINI. Yes. In fact, those discussions occurred. There were 

meetings on February 29th, 2012, May 30th, 2012, March 19th, 

2013, May 7th, 2013, November 5th, 2013 and—— 

Mr. WHITFIELD. And do you feel like you are making any 

progress in working on a solution with EPA on this? 

Mr. BRISINI. Not at this point, no. We don’t believe—— 

Mr. WHITFIELD. OK. What about the brick industry? Have you 

all been meeting with them as well? 

Mr. MCAVOY. Oh, yes, we have. We worked with them and we 

were also able to get a health-based rule which is somewhat 

ground breaking. 

Mr. WHITFIELD. So it has been productive for you? 

Mr. MCAVOY. Oh, yes. It has been productive. However, other 

issues come up, the mercury and the metals and it just also seems 

like outside sources suing, caused these problems. 

Mr. WHITFIELD. Suing to make them to comply? 

Mr. MCAVOY. Well, making the change—to vacate the rule. 

Mr. WHITFIELD. Yes, right. To make—yes, right. Right. Well, yes, 

it is really frustrating and my time is expired. So Mr. McNerney, 

you are recognized for 5 minutes. 

Mr. MCNERNEY. I want to thank the chairman. 

Today’s hearing focuses on a couple of bills—oh, sorry. That was 

my opening statement. 

We have heard today that the coal refuse facilities are unable to 

meet the EPA mercury and air toxic standards. But this isn’t the 

first time we have heard that kind of claim that they can’t meet 

the EPA standards only later to find out that the innovation made 

the standards achievable at minimal cost. 

Mr. Walke, it is my understanding that the EPA used their maximum achievable control technology program in setting up the mercury and air toxic standards. Could you briefly describe how that 

program works? 

Mr. WALKE. Sure. The Clean Air Act’s air toxic program requires 

the EPA to look at the best performers in reducing toxic air pollution. EPA did so for coal electric plants and found that waste coal 

plants were among the very best in the country among all coal 

plants including those that burned bituminous, lignite and otherwise and reducing the HCL emissions that are the subject of this 

bill and this hearing. 

The executive branch has found those emissions can be controlled. The judicial branch has found the same thing. State officials have found the same thing and plant operators are meeting 

the standards with equipment that is running today. 

Mr. MCNERNEY. Very good. So Congress, in setting up this program, did not want to merely maintain the status quo. Congress 

wanted all facilities with an industrial sector to make up the necVerDate Nov 24 2008 14:20 May 06, 2016 Jkt 037690 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-113 CHRIS
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essary upgrades to reduce their emissions in line with the best performing units. Is that right? 

Mr. WALKE. That’s correct, sir. And if I just may add some important context to a discussion that just occurred, the federal court 

in 2003 that struck down the BRICK standard found that the Bush 

administration had adopted illegally weak rules that did not reflect 

what the best performers can do. The rule was overturned following urgings by the Brick Industry Association, the trade group, 

to adopt those illegal elements in the rule and that’s why the 

courts overturned it. 

I agree it is an unfortunate situation but if anything the Bush 

administration induced these companies to install illegal and inadequate controls and that was overturned in court which is, unfortunately, where we are today. 

Mr. MCNERNEY. Well, the advocates for this bill claim that the 

coal refuse facility should be treated differently from other coal fuel 

generation facilities, that the technology and that the fuel used 

would prevent these facilities from meeting MATS standards. 

Did the EPA look at the coal refuse facilities while establishing 

the MATS standards? You sort of already answered that. Go ahead. 

Mr. WALKE. They absolutely did and found them to be among the 

best performers, a conclusion that was validated by the court and 

rejecting the same arguments that you are now hearing from the 

waste coal industry when they were advanced unsuccessfully in a 

lawsuit. 

Mr. MCNERNEY. Well, has the EPA considered treating these facilities differently from the other coal burning facilities? 

Mr. WALKE. They already do. They allow these plants alone to 

meet alternative limits of HCL or sulfur dioxide in the air toxics 

rule and—— 

Mr. MCNERNEY. Is that appropriate? 

Mr. WALKE. And I think that’s perfectly appropriate as long as 

they are strict. What this bill does is relax the sulfur dioxide limit. 

Another point is really critical. State officials today have the authority to treat these plants differently. 

They have the authority to exempt the plants from the crossstate rule. They have chosen not to do so. They have also chosen 

to give them their fair share of allowances. But that is a decision 

that can be changed by state officials tomorrow. 

Mr. MCNERNEY. Well, in your testimony you mentioned that the 

courts have also considered challenges to the mercury and air toxic 

rule based on assertions that the waste coal plants should regulate 

differently. 

Were these challenges successful? 

Mr. WALKE. They were not because the assertions were found to 

be unfounded. 

Mr. MCNERNEY. Well, based on your response then there appears 

to be no justification for allowing these facilities to emit more pollution than other similar facilities. 

Mr. WALKE. We certainly do not believe so, especially because we 

are talking about hazardous toxic air pollution and we are talking 

about pollution control devices that are both available and in use 

today. 

78 

Mr. MCNERNEY. Quickly, the results of this legislation would be, 

in my opinion, that other power plants in a given state covered by 

the CSAPR would have to drastically cut their emissions to make 

up the differences. Is that appropriate? 

Mr. WALKE. That is a strange paradox of the bill. They favor 

waste coal plants by requiring all other coal-burning plants in a 

state with waste coal plants to give up quite valuable assets, these 

sulfur dioxide allowances that can be traded or sold or used at a 

later time. 

So it’s a zero sum game and the bill takes it out of the hide of 

remaining coal plant operators. 

Mr. MCNERNEY. Very good. Thank you, Mr. Chairman. 

Mr. WHITFIELD. The gentleman’s time has expired. At this time 

the chair recognizes the gentleman from Illinois, Mr. Shimkus, for 

5 minutes. 

Mr. SHIMKUS. Thank you, Mr. Chairman. It’s a great hearing to 

have and it’s unfortunate we have two different—same but two different because I would like to get in depth on both of them and I 

want to try to. 

First, to Mr. Henry and Mr. McAvoy, thank you for creating jobs 

and livelihoods. Mr. McAvoy, what’s your payroll approximately? I 

know you probably don’t have those numbers in front of you. 

Mr. MCAVOY. About a million dollars. 

Mr. SHIMKUS. How much taxes do you pay? 

Mr. MCAVOY. You mean federal or whatever? 

Mr. SHIMKUS. Federal, state. Illinois has property taxes. 

Mr. MCAVOY. Well, property tax I think to the school district I think we’re, like, $60,000 a year. We’re a subchapter S corporation 

so I don’t have a federal number. 

Mr. SHIMKUS. And how about health care benefits that you provide? 

Mr. MCAVOY. About $20,000 a month or more. 

Mr. SHIMKUS. Right. And these are bargain—you got—your hourly folks are bargained, correct? 

Mr. MCAVOY. Yes. 

Mr. SHIMKUS. What’s the union? 

Mr. MCAVOY. Steelworkers. 

Mr. SHIMKUS. OK. 

Mr. MCAVOY. Steelworkers. 

Mr. SHIMKUS. So, again, those are always important aspects to 

debate because in my opening statement the greatest driver of 

health concerns to our population is poverty. 

So it’s an important debate to have to how much you push on 

emissions for the sake of health when you drive people into poverty 

or you cause them to lose their jobs or you put them on the welfare 

state. So I want to continue. Thank you for fighting for that aspect. 

Mr. Walke, and I appreciate you being here and I know the organization and association and you laid out a compelling case on 

technology in the SENSE Act. But you didn’t make another credible defense of technology in respect to the BRICK Act. In fact, you 

said nothing about the BRICK Act. Can you tell me why? 

Mr. WALKE. Sure. I was invited to testify about the SENSE Act. 

I have some familiarity with the Brick rule and I related some of 

that. 

79 

Mr. Shimkus, I will try my best to answer your questions but I 

didn’t prepare a written testimony. 

Mr. SHIMKUS. OK. Because obviously the brick industry—the debate is also rules, regulations we tried to meet. Now they’re changing the rules. Now we may not be able to meet it. 

So if you would, that would be helpful to me if you would come 

because it’s just important in this debate, the cost benefit analysis. 

Let me go to the—kind of segueing now to the SENSE Act. Back 

to you, Mr. Walke. I mean, those photos that was put up by I think 

Mr. Brisini are fairly compelling on reclamation and reuse. 

But in your opening statement you also said I am not going to 

dispute or discuss—you didn’t want to talk about those benefits. 

Why not? 

Mr. WALKE. I wasn’t disagreeing with those benefits is what I 

meant to say. 

Mr. SHIMKUS. So that is part of this debate. If there are benefits 

and you all accept that premise, can’t we get to how do we 

incentivize this that’s beneficial to the health and the environment 

of our citizens based upon those very compelling photos? 

I think part of the SENSE Act is let’s help each other. Let’s help 

clean up the environment but let’s give a benefit for the reuse so 

that this can happen in an affordable—I think the other compelling 

thing Mr. Beck had mentioned was the reclamation of this site the 

cost could have been $60 million and ended up being $4 million. 

From a taxpayer’s perspective, that’s hard to argue—the benefits. 

Mr. WALKE. And I am not. I have three specific ideas. I am going 

to use Pennsylvania as an example. The state officials can do today 

without needing to resort to a lot of the—— 

Mr. SHIMKUS. But they have to take from emissions of current 

operating facilities. I mean, so if there’s a set standard and then 

you penalize—you know, we don’t incentivize this and they give 

them the credits that then the proposals will take away from other 

operating facilities. 

I need to go to, and I apologize because we really don’t have 

much time, I want to give Mr. Brisini a chance to respond to some 

of the claims Mr. Walke made as far as the litigation—Bush administration and a response. Could you do that for me? 

Mr. BRISINI. I would love to, thank you. 

Let’s talk about MACT. What MACT did in that regulation EPA 

lumped two groups. They said you’re coal or you’re lignite. There 

was no differentiation between coal refuse and I believe they kept 

coal refuse because of the exact reason Mr. Walke mentioned. 

We are extremely low emitters of mercury. So they need to lump 

them in to the larger group so they can force the lowest mercury 

limit on the coal-fired plants. Also, we are extremely low emitters 

of particulate matter. They use a nonmetal mercury particulate alternative standard. Again, we helped set the bar lower for the 

other plants. But once we got drug in to allow that to happen, at 

that point we have HCL. 

I do not agree with what he said around these plants being able 

to meet hydrochloric acid. There are actually two bituminous 

plants that can meet the hydrochloric acid. No other plants, whether they are bituminous coal refuse or anthracite coal refuse, they 

don’t do it. 

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One is the last plant built in 2004 and there is a particularly 

unique sulfur dioxide control system which as a co-benefit happens 

to control hydrochloric acid. The other unit happens to burn coal 

refuse that doesn’t have chlorine. In fact, to control mercury at that 

plant you need a halogen, be it chlorine. They use bromine and 

that is how they are able to capture the mercury because you can’t 

capture mercury unless it’s oxidized. You can’t oxidize the mercury 

unless there’s a halogen present. 

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

implementation plan, and to change that federal implementation 

plan you need a new state implementation plan. 

EPA has up to 18 months to respond to a federal implementation 

plan change. So the idea that I can come in there and fix this tomorrow is not true and I will say it that bluntly. 

Now, as far as increasing emissions and having emissions increased, no. We preserve the budget but we don’t take anything 

away from an operating unit. There are a considerable number of 

units that have been retired in both Pennsylvania and in West Virginia that these are the source of the allowances. We do not increase the cap developed by EPA for Pennsylvania for SO2. We simply say let’s reallocate from the retired units. So units that are sitting there with this stuff that no longer provide jobs, no longer provide tax base, no longer provide the things that they previously 

provided. But we don’t say take them all away. 

In Pennsylvania, the reallocation split would be 65 to 35. In West 

Virginia, they would retain 86 percent of the allowances and the 

bituminous refuse plants would get 14 percent of the allowances. 

So there’s a fundamental issue. Now, as far as the—there are some 

plants that are meeting the alternative sulfur dioxide standard. 

Yes, that is true. They are the anthracite plants. They have low 

sulfur coal refuse. 

Mr. WHITFIELD. Thank you, Mr. Brisini. We get into this issue 

when—I always like to give people an opportunity to answer, particularly when they’re asked the question with about four seconds 

left in the—it’s an art. 

So thank you for your comments and particularly that part about 

states being able to immediately give you an exemption. 

Mr. Doyle, you are recognized for 5 minutes. 

Mr. DOYLE. Thank you, Mr. Chairman. 

I just want to maybe just go a little further with that, Mr. 

Brisini. 

You acknowledged that some of these coal refuse plants that 

burn bituminous coal—even some that burn bituminous coal are 

able to meet MATS and CSAPR and they have not asked for an extension to comply with the regs. You imply in your testimony that 

is so because they are burning low sulfur bituminous coal refuse. 

Are there any other distinguishing features at these plants that are 

able to comply? Are there any technologies that other plants could 

adopt to mitigate the release of these pollutants and comply with 

the standards? 

Mr. BRISINI. The circumstance you have is that there is one bituminous plant that meets the HCL. They cannot meet—because 

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not meet the current alternate SO2 limit. The other plants that can 

meet the alternate SO2 limit are anthracite refuse plants in the 

eastern part of the state but they don’t meet the hydrochloric acid 

limit either. Only one other plant does and there is not chlorine in 

the coal refuse that they burn. 

Mr. DOYLE. So you are saying that there are no new technologies 

that are available that would allow them to comply? 

Mr. BRISINI. I suppose that there would be a way. But we looked 

at a number of things to try to do that including the ejection of additional limestone. But it ultimately ends up in increasing of mass 

emissions. And something else that happens is that there is varied 

sulfur content in the coal refuse piles in the bituminous region that 

can get even higher. To simply pick a number and not look at a 

performance-based standard for removal would eliminate the opportunity to pursue the highest sulfur coal refuse piles to reclaim 

them and they probably have the highest level of acidic discharge 

with the greatest negative effect on a waterway. 

Mr. DOYLE. Couldn’t some of these plants add another type of 

fuel or make the waste coal their secondary fuel source so that it 

reduces the sulfur or HCL and helps them comply with the standards? 

Is there an alternative way to deal with this? 

Mr. BRISINI. Not really, no. Not from the standpoint of entering 

a different fuel. You can’t start burning—number one, there is limitations by virtue of financing and other issues that these coal 

plants are obligated to burn at least 75 percent coal refuse. There 

is also—as you go through there is chlorine in the coal that’s also 

burned. But there is—you can’t dilute it. Plus, you are also limited 

into the calorific value that can go into a fluidized bed combuster. 

For example, the most recent one built, and as they build them 

they build them to be able to burn lower and lower quality coal 

refuse, the older ones that were built require—they burned or designed to burn about 6,800 BTUs per pound for their heat input 

for their fuel. The most recent one built is at 5,500 and coal is generally 12,000 to 13,000 BTUs. 

Mr. DOYLE. OK. Thank you. I want to ask Mr. Walke, too. 

Mr. Walke, I understand and appreciate your concern that states 

maintain their rights under the Clean Air Act. But you know, in 

my state, particularly in Pennsylvania, many elected officials 

strongly value these coal refuse plants on both sides of the aisle, 

I might add, and our own DEP, Pennsylvania’s Department of 

DEP, submitted official comments to the EPA urging special consideration of the coal refuse-fired facilities under CSAPR. In their 

comments they explain the importance of these facilities to restoring the environment and preventing acid mine drainage. They ultimately concluded that constructing a rule that results in the closure of these facilities will have significant impacts on my state’s 

ability to restore these mine-affected areas to benefit our state and 

our downstream neighbors. 

What do you recommend the Pennsylvania DEP should do, going 

forward? 

Mr. WALKE. Congressman Doyle, thank you for your thoughtful 

question and I did read those very thoughtful comments by the 

Pennsylvania DEP. Several things that can be done and some of 

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them are actually mentioned in the letter. States today have the 

authority to differently allocate allowances within the emitters in 

their state. They can do it to other coal-burning electric utilities. 

They can do it to non-electric sector. They have the full array of 

choice about how best to achieve those reductions cost effectively. 

So if Pennsylvania wants to incentivize a waste coal energy production, they can do so by reallocating sulfur dioxide allowances 

within the electric sector. They can do a mix within the electric sector—— 

Mr. DOYLE. So they would have to submit a new SIP. Is that 

what you are saying? 

Mr. WALKE. I did not mean to suggest and maybe I did by using 

tomorrow that this could be accomplished by midnight tomorrow. 

Clearly, not. But there are—— 

Mr. DOYLE. It sounded that way when you said it. 

Mr. WALKE. Yes. Well, I apologize for that impression. 

The state has the authority to design their own plan to allocate 

things differently than the federal model. They have the option not 

to do that. 

Mr. DOYLE. So that gets them though CSAPR but how does that 

get them to comply with MATS? 

Mr. WALKE. That’s an excellent question. So you actually hit 

upon some of it yourself. There are plants in West Virginia, for example, that are using waste coal as a secondary fuel that are installing scrubbers and meeting the standard. They will do so by 

April. There are Pennsylvania plants who have told the state that 

they will undertake limestone injection in order to satisfy the 

standard. EPA found that there are scrubbers that can reduce 

emissions by 96 percent of sulfur dioxide. 

The bill, of course, weakens that standard. So there are waste 

coal plants across the country complying with the standard or that 

will be complying with the standard with off-the-shelf technology 

that is available and EPA and the courts have both found that to 

be the case. 

Mr. DOYLE. Mr. Chairman, thank you for your indulgence. 

Mr. WHITFIELD. Yes, sir. And at this time the chair recognizes 

the gentleman from Ohio, Mr. Latta, for five minutes. 

Mr. LATTA. Well, thank you, Mr. Chairman, and thanks for conducting today’s hearing, and to our panel thanks very much for 

your testimony today. It’s very enlightening. 

If I could just start maybe between Mr. Henry and Mr. McAvoy 

to ask you some questions about the brick industry in general. Are 

bricks made all over the country? Are they regionalized? Where are 

most bricks being made at today? 

Mr. HENRY. I am sorry. What was the—— 

Mr. LATTA. Where are the bricks being made at today? Is it regional or all over? 

Mr. HENRY. Predominantly in the southeast and up through the 

Atlantic east coast but there is brick plants located all over the 

country. 

Mr. LATTA. The next question I have is because bricks aren’t 

light. They are pretty heavy. So I was just thinking on the transportation costs, we are looking on the transportation, how far you 

have to get to transport those bricks. And the question on the 

83 

transportation costs, of course, when you look at the weight and 

the costs there, when you are having these costs being associated 

with the EPA coming down on you, you are going to have to pass 

those costs on. I would assume you are doing that. 

So Mr. McAvoy, you are shaking your head. If you would like to 

comment on that. 

Mr. MCAVOY. Yes, it is another burden cost that is going to have 

to be either absorbed by us or our customers or a combination of 

the two. 

Mr. LATTA. Well, again, when you are looking at, absorbing by 

you because, with the—I am not sure exactly what your margins 

are. 

But you are going to have to somehow get that cost down to 

the—on the construction industry but then that is going to be cost 

passed on to the owner, then. It’s going to be that homeowner out 

there that wants to build a new house that’s going to have to pay 

more cost for the brick. Or if you are a hardworking American out 

there that wants to build a new factory or plant or some type of 

business that they are going to be using some type of brick product 

that is going to have to be added into that cost, I would assume. 

So just in general if you could give me an idea of maybe over like 

the last since these regulations have come on which you have seen 

that you might see an average cost of a brick going up that would 

be passed on then to the ultimate consumer of that brick. 

Mr. MCAVOY. Do you want a specific number? 

Mr. LATTA. Or just an approximate, if you can do that. 

Mr. MCAVOY. It would all depend on what kind of scrubber or 

whatever we put in. There are different options. 

Davis might be able to answer that since you have been running 

one. How much more did that add to your cost? 

Mr. HENRY. Well, you would like to think you could pass on all 

these costs to your customers and we certainly try. A lot of it does 

end up with us and it reduces your margins, makes it harder to 

reinvest and continue your business. 

But those you can’t pass on it is probably in the dollars—dollar 

or two per thousand range. It’s not a—you can’t pass on all of it. 

How about that? 

Mr. LATTA. Right. Let me ask this, Mr. Henry, if I could. The 

EPA estimates that this rule would have an annual cost in the 

neighborhood of $25 million while the Chamber of Commerce report cites industry estimates as high as $100 million. 

Would you like to comment on that difference between—if you have any knowledge on that from the EPA estimate of $25 million 

to the Chamber estimating at $100 million, how—we are talking 

$75 million. That’s quite a bit of difference there. 

Mr. HENRY. Well, based on Henry Brick itself, for us to comply 

with the new MACT is going to cost one company $8 million and 

there’s a lot more than one brick company around. So I would say 

it’s probably in the—closer to $100 million versus the $25 million. 

Mr. LATTA. Mr. McAvoy? 

Mr. MCAVOY. The EPA’s numbers have a lot of assumptions that 

we have problems with. You know, they are just doing a guess. 

They don’t have the exact data. We feel that we have better data 

and that the cost will be higher than what they project. 

84 

Mr. LATTA. Where does the EPA get their data from that they are coming up with that estimate of $25 million? 

Mr. HENRY. I don’t know. I don’t know. 

Mr. LATTA. OK. Mr. Brisini, if I could ask you a quick question 

with my last 35 seconds. I’ll try to be better than the gentleman 

from Illinois with only four seconds. 

Are coal refuse-to-energy facilities typically located in smaller 

communities? Are these coal refuse-to-energy facilities typically located in a smaller community or a larger community? 

Mr. BRISINI. The coal refuse plants are located in small communities. They are extremely important to the small communities. In 

the case of the three bituminous coal refuse plants that are near 

where I live in Edensburg, it is the county seat of Cambria County. 

It is less than 4,000 people population. 

Mr. LATTA. Thank you very much. 

Mr. Chairman, I see my time has expired and I yield back. 

Mr. WHITFIELD. Thank you, Mr. Latta. 

At this time I will recognize the gentleman from Texas, Mr. 

Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman and ranking member, for 

holding the hearing today. I want to thank our witnesses for coming and testifying. 

Mr. Beck, in 2014 the Pennsylvania Department of Environmental Protection submitted comments to the Environmental Protection Agency. In these comments, the Pennsylvania DEP requested an exemption for coal waste facilities. DEP further recommended EPA establish a subcategory for waste coal technology. 

Can you offer your thoughts on why your state agency submitted 

these comments? Oh, Mr. Beck, you’re chair of the coalition of 

abandoned mines. Why did your state environmental agency submit those comments? 

Mr. BECK. Why did they what? 

Mr. GREEN. Why did they submit those comments about recommending the EPA establish a subcategory for waste coal technology? Your state environmental agency submitted comments to 

EPA and was there any reason for it or did they do research? 

Mr. BECK. Mr. Brisini worked for DEP too so I think he—— 

Mr. BRISINI. I can explain. I can explain, and it gets back to the 

point I made about how they did MACT. When EPA did MACT 

they did not—— 

Mr. GREEN. Could you pull the mic a little closer? 

Mr. BRISINI. Yes, sure. They did not establish separate categories 

for coal refuse or different types of coal, anthracite coal or bituminous coal. They turned it into two categories—lignite, everybody 

else. 

So the point that was being made is to appropriately address and 

prepare appropriate standards for the coal refuse plants you should 

look at the emissions that are achieved by the coal refuse plants. 

That’s how you do a MACT regulation. You look at the top 12 percent of the performing existing facilities and you pick from those 

numbers. That’s exactly why they put them together though because they wanted the mercury number to be as low as possible. 

Mr. GREEN. Most of the testimony offered today highlights the 

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ever, the Clean Air Council submitted comments to the EPA stating the more environmentally friendly way of dealing with waste 

coal would be more cost effective as well. Can any of the panel comment on the Clean Air Council’s proposal to plant, for example, 

beach grass and if their comment holds true? 

Mr. BRISINI. Well, we have tried to investigate the beach grass 

claim and what they did, and I have only ever been able to find 

an overview of the study—I have never found the study, I have 

never found background information on the particular pile they 

wanted to introduce the beach grass to. The fundamental premise 

of that study is they want to introduce beach grass and it will grow 

for a period of time and then they will start to repopulate and then 

other native species will overtake the refuse pile. We don’t believe 

that that addresses the issue because it doesn’t address percolation, surface runoff and it doesn’t prevent future fires from occurring within the piles because a coal refuse fire does not start on 

the top by somebody throwing a match on it. It starts from the inside. In my written testimony, I provided a coal refuse white paper 

that discusses refuse fires and those sorts of things. But no, we do 

not believe beach grass is any solution. 

I kind of look at it as, if somebody’s coming and you want to 

clean up the house so you throw the stuff in the closet. 

Mr. GREEN. OK. Mr. Walke, in your testimony you cite White 

Stallion and in that case the D.C. court states, among other things, 

that EPA notes that CFBs were among the best and worst performers of various pollutants. 

Is the technology and retrofitting the difference between the best 

and the worst in the categories discussed by the D.C. court? 

Mr. WALKE. Well, the D.C. court upheld EPA’s standard in all respects and that finding wasn’t challenged by the Supreme Court 

with respect to the standards themselves and the achievability of 

the standards and the propriety of the emission limits. The EPA 

did create a separate subcategory for the lignite coal in your state, 

Congressman Green, and there are technologies that are more appropriate to lignite. But the court specifically rejected a challenge 

by the trade association for the waste coal industry and said EPA 

was correct not to have established a subcategory for waste coal, 

and then Pennsylvania DEP asked EPA to reconsider that after the 

failed court challenge. 

Mr. GREEN. Mr. Chairman, in our district you heard over the 

years I have five refineries that generate tons of petroleum coke 

that we can’t burn and we’re lucky enough to have a ship channel 

where we load it onto a ship and send it to Africa, India, wherever 

else. That is not possible in Pennsylvania because the rail cost of 

the transportation to somewhere would be, I guess, huge and so 

economically disadvantaged. Is that correct? 

Mr. WALKE. I think that’s correct and it is important to note 

where there is agreement here. I am not arguing that we shouldn’t 

be able to combust this and they are not arguing that they 

shouldn’t have to control emissions. What we are arguing about is 

whether the standards that have been issued by EPA and upheld 

by the courts and that are being achieved today and that will be 

achieved with available technology should be weakened by this bill 

or allowed to continue. 

86 

Mr. GREEN. Thank you, Mr. Chairman. 

Mr. WHITFIELD. At this time, the chair will recognize the gentleman from West Virginia, Mr. McKinley, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

I suppose I really want to just address the SENSE Act over the 

coal refuse legislation. I am trying to take it from a little bit different perspective, maybe from 30,000 feet and that is all these 

new standards. 

Just imagine the less—there will be so much less acrimony, differences of opinion, particularly back to you, Walke—if these were 

applicable only to new construction. 

If a new coal refuse facility had to be constructed it has to follow 

these new standards. What I find offensive here in Washington is 

these new standards are put together and then they are applied 

retroactively back to existing facilities. 

I come from the construction industry and I can just assure you 

right now that the Cannon Office Building doesn’t comply with all 

the proper air quality—indoor air quality standards. It is laden 

with asbestos but yet we don’t go back and make them retroactively address that unless we are going to do a major renovation. 

This room in and of itself also doesn’t comply with indoor air quality standards of air turnovers. Neither does the Cannon Office 

Building. 

The Capitol building doesn’t comply. But yet we are allowed to 

continue to use it. We walk across floor tile that’s laden with asbestos. We have got asbestos in our plaster walls and it is OK. But 

yet you go after a coal refuse energy facility and say these new 

standards, you have to go back and retroactively do that. 

I just think it is disingenuous the way we approach some of these 

things and I think it’s a disservice to the taxpayers and anyone 

else when we apply—in your words, picking winners and losers. In 

schools and office buildings, we don’t make them go back and retroactively do that but yet we are doing it to industry. We are doing 

it to the coal industry and I am troubled with that and I just know 

that we’d have a lot less acrimony—I think we could get along with 

a lot of our regulations if we imposed a new reg only applicable to 

a new power plant, not to go back and shut them down. 

And I am a little concerned because I’m hearing from testimony 

from the—and reading the document that when we have two facilities in my district in West Virginia, they are going to shut down 

under these standards and we are treating as though as they are 

not being truthful. 

They can do it. I guess they can if they can get the money to do 

it and people are willing to pay the additional cost of energy that 

they are going to create as a result of that, and apparently what 

they have found out is that there is no interest in that. The people 

that are consuming don’t want to pay that so they are going to 

close down and we are talking about in these two over $3 million 

in taxes that will be lost as a result. Sixty percent of that in West 

Virginia goes for schools. 

We just cut out another $1.8 million, almost $2 million from our 

schools in West Virginia to accomplish something that should go 

forward, not retroactive. What are we thinking about when it 

comes to that? 

87 

I go to you, Walke. Is it more responsible to say go ahead into 

the future? Wouldn’t you find we would have more common interests if we used common sense to apply these regs, whether it’s new 

source performance standards? All of this and this, wouldn’t it be 

better if we just applied it to new construction rather than old construction? 

Mr. WALKE. Congressman, thank you. 

I don’t think so and when the 1990 law was passed—— 

Mr. MCKINLEY. So do you think we should shut down the Cannon Office Building then and make sure everyone leaves here because we’re not in conformity with the standards that have been 

adopted across this country. 

Mr. WALKE. So this clean air program was promoted for—— 

Mr. MCKINLEY. But this is indoor air quality, though, Walke. 

That’s what I’m talking about. You’re subjecting all these people to 

have indoor air quality that is detrimental to their health. We 

spend 90 percent of our time indoors and we are not complying 

with the indoor air quality standards. But we allow that to continue because we understand the problems there would be if we 

tried to retroactively address old buildings. 

Why aren’t we looking at it into the future? Don’t you think— 

my time is over—I am going to submit that if we made it effective 

to new construction, new brick plants, new coal to refuse, coal energy, that we would not have this problem right now—that they 

would be designed accordingly and they would be built into the 

cost. But to do this retroactively is not common sense, and I yield 

back my time. Thank you. 

Mr. WHITFIELD. At this time, the chair will recognize the gentleman from New York, Mr. Engel, for 5 minutes. 

Mr. ENGEL. Thank you very much, Mr. Chairman. 

Mr. Walke, I have a series of questions I would like to ask you. 

One of them was touched on when you had an exchange with Mr. 

Doyle so I would like to ask you to emphasize certain things. We 

have heard testimony today that all waste coal plants can meet the 

mercury standard under MATS but many cannot meet the hydrogen standard or the sulfur dioxide standards. 

Firstly, do you agree with that assessment and in your answer 

if possible could you discuss the D.C. circuit court’s decision in 

White Stallion Energy Center versus EPA? 

Mr. WALKE. Certainly. Thank you, Congressman. 

Let me take those one by one. One thing that hasn’t come out 

yet at this hearing is that one of the reasons waste coal plants are 

meeting the mercury standard and the particulate matter standard 

is they qualified for an exemption—a low-emitter exemption where 

they are not actually—I mean, I guess you could call that meeting 

the standard but they qualify for a low-emitter exemption, which 

I think is appropriate. 

Other plants have coal waste profiles or controls in place to 

achieve compliance. It is simply incorrect to suggest that coal waste 

plants burning any type of coal waste are incapable of achieving either the HCL or the SO2 standard in the existing MATS rule. 

The court rejected that claim. EPA has rejected that claim. What 

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tions submitted from coal waste operators announcing the controls 

they are going to install. 

We have controls that are going to go into a place by April of this 

year. We have controls on plants already that are being operated. 

So when the D.C. Circuit in its decision heard the full legal arguments from the trade association for waste coal operators and 

looked at all the evidence they presented and the evidence in the 

administrative record that EPA had compiled, they squarely rejected those claims in a three to nothing decision and that decision 

was left untouched by the Supreme Court in that relevant respect. 

Mr. ENGEL. Thank you. 

Janet McCabe, the acting assistant administrator for the Office 

of Air and Radiation of the EPA, submitted a written statement for 

today’s hearing. 

She says that the bill we are discussing today would remove the 

economic incentives to reduce emissions at waste coal plants because emissions allocations for those plants could not be traded 

under the cross-state air pollution rule, or CSAPR. 

She argues that the result would be less efficient and more costly 

compliance with CSAPR. Do you agree with her assessment? 

Mr. WALKE. Absolutely. She is just describing the mechanics of 

the program. 

The units that retired that were referred to by one of my fellow 

witnesses generated valuable allowances that are held by those 

coal operators and that can be used by those plants or that can be 

traded. 

And yet this bill would take them away. It would do the same 

for plants that converted to natural gas. There is a very robust 

market in tradeable allowances that was created by the 1990 law 

and then continued in other forms and it is just inescapable that 

the design of this bill would take away those valuable assets from 

coal plant operators in Pennsylvania, West Virginia and elsewhere 

and simply transfer them to waste coal operators who want to pollute at higher levels than the law today allows. 

Mr. ENGEL. You mentioned that Section 2(b) of this bill would 

interfere with a state’s rights to determine how to best comply with 

the requirements of EPA’s cross-state air pollution rule and favors 

waste coal burning plants over other in-state power plants. 

So this bill takes long-standing state authority, transfers it to the 

federal government and then uses that authority to pick winners 

and losers. Is that right and can you explain? 

Mr. WALKE. That is right and I find it a particular paradox for 

sponsors whose voting records in the past have suggested such 

strong support for states’ rights. 

The law today is even handed with respect to the decisions that 

state officials may make about how to allocate those allowances 

and states make their own decision. 

This disrupts that and for the first time in any interstate legislation I have ever seen takes it away from the states and paradoxically transfers it up to Washington to override the ability of those 

states to make different allocation decisions. It is just puzzling. 

Mr. ENGEL. All right. Thank you. Thank you very much, Mr. 

Walke. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Mr. Brisini, you want to make a comment? 

89 

Mr. BRISINI. I sure do. Thank you very much. 

I find it really interesting that we keep hearing this—well, this 

SENSE Act picks winners and losers when in fact the federal implementation plan picked the winners and losers and they happened to pick in CSAPR the bituminous coal-fired refuse plants to 

be the losers in the CSAPR phase two allocation. 

And they also picked the bituminous coal-fired refuse plants to 

be the loser in MATS because, as I have said all along, the anthracite refuse plants can meet the alternative 0.2 standard. 

That is because the sulfur content of the coal refuse in the anthracite region is lower. It is not because the technology is different 

or they have anything special and it is part of the problem when 

you lump all of these things together not recognizing the technical 

and the differences in these kinds of fuels. 

Mr. ENGEL. OK. 

Mr. BRISINI. Now, as far as the idea that they are usurping 

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

If you go on to read the Pennsylvania DEP comments, you will 

often find in the comments what happened to cooperative federalism and that is really one of the arguments you have then. 

Mr. WHITFIELD. Mr. Brisini, I gave you a chance to respond there 

but I need to recognize Mr.—— 

Mr. ENGEL. I was going to ask, Mr. Chairman, if perhaps Mr. 

Walke could respond to something that Mr. Brisini—— 

Mr. WHITFIELD. I will tell you what. Let me finish with these two 

and then what we will do we will let Mr. Walke and Mr. Brisini 

sit next to each other and then we will go at it some more. 

At this time, I will recognize Mr. Johnson of Ohio for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman, and I appreciate so 

much the panel being here today. Very important issues we are 

talking about—the health of an industry, jobs, our economy. Very 

important. 

Mr. Henry or Mr. McAvoy, can one of you talk more about the 

ability to get a loan for a control device to comply with the EPA’s 

MACT? I mean, if you had to get one of these loans how would it 

affect your employment level at your facility? 

Mr. MCAVOY. It would greatly affect it because we probably 

couldn’t obtain the loan and even if we were able to structure it 

in such a way that we could make payments, the cyclical nature 

of our industry and so forth, you know, would probably cause us 

to default at some point in time. 

Mr. JOHNSON. OK. Mr. Henry? 

Mr. HENRY. The one thing that makes it really hard at this current juncture is that we have been through a very rough 8 years. 

I don’t think anybody in the brick industry would say they have 

enjoyed the last eight years. 

And so our balance sheets reflect that and so to go and try to 

secure a loan now and look a banker in the face and go, well, here 

are my financials—— 

Mr. JOHNSON. Sure. 

Mr. HENRY [continuing]. I need $7 million or $8 million, there is 

not a bank out there that would look at ours and feel very good 

about being paid back. 

90 

Mr. JOHNSON. Right. Well, there’s this status of a synthetic 

minor. You are able to get underneath the caps and that you would 

be then given some relief from some of this. 

But how would that affect—let us say you were to be identified 

as a synthetic minor. How would that affect the company’s ability 

to grow? 

Mr. HENRY. That is a very good question. We have two plants 

that are side by side in Selma and if we became a synthetic minor 

we would no longer have the ability to grow in our local community. If we grew we would have to grow outside of that area. 

Mr. JOHNSON. So basically that limits your ability to create jobs 

and provide economic growth in your community. For both of you 

again, Mr. Henry and Mr. McAvoy, how would this particular legislation that we are talking about, the BRICK Act, be helpful? 

I mean, considering that the industry has already spent hundreds of millions to comply with a similar EPA rule in the past 

only to have the courts vacate the rule a few years later, how 

would the BRICK Act be helpful? 

Mr. HENRY. I would say first we all want to do our part in the 

industry to be good to the environment. We want to do that. 

But there is only finite resources we have to spend on that and 

what we don’t want to have happen is have another rule vacated 

or the baseline change and we have spent a lot of money unnecessarily to comply with a rule that may not take effect or be changed 

down the road and it is a lot of money to spend not knowing that 

it is necessary. 

Mr. JOHNSON. So letting the judicial reviews and letting the process play out before you have to comply certainly would be financially more acceptable to your industry? 

Mr. HENRY. Certainly. We would know exactly what we had to 

do. We would have 3 years to comply with the final, final rule and 

make sure that we don’t waste resources. 

Mr. JOHNSON. OK. Mr. Henry, continuing with you, the study 

that you attached to your testimony states that foreign competition 

in the brick industry has not been a factor in the past. Is that correct? 

Mr. HENRY. Foreign competition as far as importing brick from 

other countries, no. 

Mr. JOHNSON. And can you explain why that is not a factor? 

Mr. HENRY. Brick weigh a lot. They cost a lot to ship. 

Mr. JOHNSON. Sure. I knew that but I wanted the rest of the 

committee to understand that. 

How might this unique situation—that is, the relative absence of 

foreign competition coupled with the EPA’s rules which threaten 

the very survival of many of the family-owned brick plants across 

America, how would this affect the future availability of U.S. brick? 

We don’t have any coming in imported. If you guys go out of 

business and can’t produce brick, are we back to building buildings 

with sticks and straw? 

Mr. HENRY. Or vinyl or something, yes. The brick industry is 

very expensive to get into not only because of the control devices 

but just the process itself is. And so there would not be a lot of 

newcomers to our industry, if I had to guess. 

Mr. JOHNSON. All right. All right. 

91 

Mr. McAvoy, my time has expired but if we could—go ahead. 

Mr. MCAVOY. My guess what would happen is the few multinational brick companies that have access to capital and so forth 

would be there—— 

Mr. JOHNSON. To fill that void. Yes. 

Mr. MCAVOY [continuing]. In the market and the small—— 

Mr. JOHNSON. So it would be other countries that would benefit 

from—— 

Mr. MCAVOY. Yes. They wouldn’t be made overseas but definitely 

the profits would be going there. 

Mr. JOHNSON. All right. Another example of policies that enable 

our competitors overseas, Mr. Chairman. I yield back. 

Mr. WHITFIELD. Thank you. Thank you. 

At this time the chair recognizes the gentleman from New Jersey, Mr. Pallone, for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. I wanted to ask Mr. 

Walke a series of questions. 

The SENSE Act would give coal refuse facilities special consideration under the cross-state air pollution rule, or CSAPR, and EPA 

issued this rule to protect the health of millions of Americans by 

reducing air pollution and requiring states to reduce power plant 

emissions that cross state lines and contribute to air quality problems in other states. 

CSAPR ensures that downwind states don’t have to impose more 

stringent controls on local businesses to make up for the effects of 

increased out-of-state pollution and the rule achieves all this by 

creating economic incentives to reduce pollution from power plants. 

So Mr. Walke, if enacted how would the SENSE Act impact the 

operation of the CSAPR program? Would pollution reductions still 

be incentivized? 

Mr. WALKE. No, certainly not. Well, what the SENSE Act does 

is it establishes these static permanent higher pollution levels for 

sulfur dioxide available just to waste coal plants and everyone else 

has to make the accommodating reductions whether that is in your 

downwind state of New Jersey, Congressman Pallone, or within the 

State of Pennsylvania itself. 

And there is available technology in the form of scrubbers to 

meet the lower sulfur dioxide limits in the cross-state rule and in 

the mercury and air toxics rule and you have plants that are either 

operating that equipment today or installing it. 

And so this it is just kind of a raw political transfer from one 

sector to another after that sector suffered losses in courts when 

its arguments on the merits were not successful. 

Mr. PALLONE. OK. Now, some of today’s testimony characterizes 

the CSAPR provisions in the SENSE Act as merely correcting errors in how the EPA set up the CSAPR rule. 

But I wanted to ask you are coal refuse facilities different than 

traditional coal facilities? Should EPA have treated them differently under the CSAPR rule? 

Mr. WALKE. Well, certainly they are different in the fuel they 

burn but just as lignite and bituminous and anthracite and other 

types of facilities are. 

What Congress said in 1990 in a law that was actually voted on 

by Congressman Barton. What they said is that you are supposed 

92 

to look at the best performers and the best performance and EPA 

found that waste coal plants met that criteria with respect to the 

HCL emissions that we are talking about here today. 

I don’t disagree with my colleague about mercury and particulate 

matter but that is not what this bill is about. It is about HCL and 

sulfur dioxide relaxations under the cross-state rule and the mercury rule. 

There is available technology to meet those standards and that 

is really not disputed in the rulemaking record or the judicial 

record and I haven’t seen any testimony today that actually overrides EPA’s conclusion that scrubbers can meet 96 percent control 

reductions that will satisfy these standards and that there are 

plants today that are meeting those standards sometimes with lime 

injection being used as well. 

But the coal sector has been reducing these forms of pollution for 

40 years in this country and that is no different than a boiler that 

is using what we call waste coal. 

Mr. PALLONE. All right. Well, if a state wanted to treat coal 

refuse facilities differently, do they have that ability to do so under 

the EPA rule? 

Mr. WALKE. They absolutely do. That has been the hallmark of 

the interstate program since its inception in 1977 that they have 

the first crack and in fact the final crack if they want to take it. 

What is really instructive after all this talk that we have been 

hearing of how much of a burden it is to coal waste plants that 

should be incentivized, there is not a single state in the country 

covered by the cross-state rule that departed from the formula that 

EPA adopted for allocating allowances. 

Why is that? Because EPA used a formula that was based upon 

highly cost effective reductions. And so the power generators in all 

of those states including states with waste coal plants didn’t want 

that formula disrupted. 

Now, the waste coal plant operators did but they did not prevail 

in Pennsylvania or West Virginia. Their state officials made different decisions. They could change that decision and EPA would 

approve that change. 

Mr. PALLONE. So, are the CSAPR provisions in the SENSE Act 

even necessary? 

Mr. WALKE. No, they are not necessary and I read EPA Administrator McCabe’s statement and I believe she uses that exact word. 

They are unnecessary. 

If the State of Pennsylvania wants to reallocate allowances along 

the lines in the SENSE Act and to take them away from in-state 

coal generators or take them away from manufacturers or whomever they choose they may do so under today’s law without any 

need for this legislation. 

Mr. PALLONE. All right. Thank you very much. Thank you, Mr. 

Chairman. 

Mr. WHITFIELD. At this time the chair recognizes the gentleman 

from Missouri, Mr. Long, for 5 minutes. 

Mr. LONG. Thank you, Mr. Chairman, and Mr. Beck, you state 

in your testimony that the EPA wants the small coal waste plants 

to reduce mercury emissions, 70 percent of just 8 ounces. 

93 

How does this compare to large coal plants? Turn your mic on. 

Pull it real close there. People listen on the Internet and they can’t 

hear unless you get your mic up close. 

Mr. BECK. On the mercury—70 percent on the mercury, did you 

say? 

Mr. LONG. Right. In your testimony you say EPA wants small 

coal waste plants to reduce the mercury emissions. 

Mr. BECK. That was my understanding of the rule that they were 

going to put a blanket over it and require all the coal-fired power 

plants to reduce mercury 70 percent. 

Mr. LONG. So it is the same as the large coal? 

Mr. BECK. Yes. 

Mr. LONG. There is no difference in the small coal plants? 

Mr. BECK. I am not sure what the amounts are or the concentrations are on the anthracite coal that they have out there. But I 

know about the waste bituminous coal and the regular bituminous 

coal plants. 

Mr. LONG. Are you in a position where you could discuss the financial impact of this rule on small coal waste plants? 

Mr. BECK. The problem is 70 percent of 8 ounces. The one waste 

coal plant did a stack emission test—— 

Mr. LONG. Can you pull your mic a little closer for me? 

Mr. BECK [continuing]. On 8 ounces—— 

Mr. LONG. Can you pull your microphone closer to you? 

Mr. BECK [continuing]. And found 8 ounces per year coming out 

of the stack on an actual emissions test and the larger normal coal 

plants which burned the deep coal or the strip mined coal the one 

was producing 1,600 pounds of mercury here. 

So, 70 percent of 1,600 pounds—that is a lot of emissions coming 

out. But how do you reduce 8 ounces by 70 percent? That is probably not detectable. 

Mr. LONG. What is the impact of this for the industry as a whole, 

then? 

Mr. BECK. They would have to spend a lot of money to try to get 

it down that low. 

Mr. LONG. Or go out of business maybe? 

Mr. BECK. And it would probably put them out of business. And 

my issue with that is if the small waste coal burning plants go out 

of business there are going to be more piles that ignite and throw 

many times more mercury into the atmosphere than the waste coal 

plants ever did. 

Mr. LONG. OK. And Mr. Brisini, could you discuss the alternative 

compliance options and the SENSE Act for coal refuse facilities 

burning high sulfur coal? 

Mr. BRISINI. The alternative option is to identify a performance 

standard 93 percent sulfur dioxide removal and add that as an option to provide for a compliance demonstration. 

That would only be used by the bituminous coal refuse fired 

plants. People keep talking as though we are talking about all of 

the coal refuse plants. 

The SENSE Act really provides relief for bituminous coal refuse 

plants. Because of the fuel makeup, the anthracite, they can meet 

the current alternative SO2 standard. As far as the statement that 

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was made that everybody meets HCL, that is not in fact true at 

all. 

In Pennsylvania, there is one coal refuse plant of either type, bituminous or anthracite, that meets the HCL. The circumstance is 

that that plant is a low emitter and that one plant was used in the 

development of the MACT floor. 

But that’s one plant. That’s an outlier. It was the last plant built, 

came online in 2004. There are vast differences between coal and 

coal refuse plants. It’s not only the fuel. It is the technology used 

to burn the fuel to make the material. 

Large coal-fired power plants or pulverized coal-fired power 

plants, they can be equipped with selective catalytic reduction for 

nitrogen oxides. They can be equipped with wet flue gas scrubbers 

in a cost effective fashion. 

That is, by the way, how the large coal-fired plants will control 

mercury. They will not be doing it with any mercury-specific control technology. The mercury will be removed as a co-benefit of the 

sulfur dioxide controlled in the coal-fired power plants. 

But as far as another statement that the state gets a first crack, 

that is not the case in CSAPR. It’s been a FIP from day one, and 

in fact if you go back and you look at other Department of Environmental Protection letters from Pennsylvania DEP there was great 

consternation raised over the FIP first because the states were not 

given the opportunity in CSAPR to do anything. 

It was not similar to CARE where a budget was established and 

the states had the opportunity to develop their own allocation 

methodologies, which is what we did in Pennsylvania and other 

states did the same thing. 

Mr. LONG. I am a little confused on my time. I have gone from 

8—the chairman was very generous, gave me 8 minutes and 20 

seconds for a while and it stopped and then a minute and now 38 

seconds. I’m not sure—— 

Mr. WHITFIELD. You’ve actually been over 5 minutes but we’ll 

give you—— 

Mr. LONG. Well, with that I will yield back. I have been trying 

to watch the clock and fit in my questions but that didn’t work too 

well. So I think the regulators have taken a hold of our clocks. 

Mr. BRISINI. The regulated, not the regulators. The regulated. 

Mr. WHITFIELD. OK. Thank you. At this time I will recognize the 

gentleman from Oklahoma, Mr. Mullin, for 5 minutes. 

Mr. MULLIN. Thank you, Mr. Chairman, and thank you to the 

panel for being here. 

Mr. Walke, where are you from? 

Mr. WALKE. I am from South Carolina. 

Mr. MULLIN. South Carolina. What is your interest in Pennsylvania? 

Mr. WALKE. My interest is in air pollution and this bill concerns 

coal plants that are—— 

Mr. MULLIN. Do you believe in states’ rights? But do you believe 

in states’ rights? 

Mr. WALKE. Sure. There is a whole—— 

Mr. MULLIN. So what you are opposing is going to affect—— 

Mr. WALKE. South Carolina is going to award it without that. 

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Mr. MULLIN. Yes, but what you are opposing is going to affect 

the people that really live in Pennsylvania and I have a big problem with people that are injecting their opinion in a community 

they don’t live in. 

You don’t understand how important it is, the way of life it is, 

for those that live in Pennsylvania but yet you want to inject your 

opinion in it. That is why we set up states’ rights to begin with and 

you said you believe in it. 

You say there’s a way that states can go around it and they have 

the final say in it. Well, you and I both know that is absolutely not 

true because what happens is the EPA sets the standards and then 

they hold the entire state hostage for it and that is how we are putting an entire industry out of business. 

And then you say that there are scrubbers that is available. 

Well, how much do those scrubbers cost? How much do those scrubbers cost that you are talking about to install? 

What do they cost an individual or the industry to install per 

scrubber? 

Mr. WALKE. Congressman, there are different sizes according to 

the size of the plant. 

Mr. MULLIN. Give me an average. 

Mr. WALKE. I don’t think an average is possible. I don’t know—— 

Mr. MULLIN. So you’re saying that this technology is available 

but you don’t even know what it costs and then again you are not 

even going to pay it because you don’t even live in the state. But 

yet you want to put your opinion in there. I have a big problem 

with this. 

Mr. WALKE. Congressman, I was invited to testify at this committee. 

Mr. MULLIN. I understand you were invited. 

Mr. WALKE. I’ve only lived in two states my whole life but I am 

testifying about a field that applies across the country. 

Mr. MULLIN. I understand that you were invited. You can listen 

because I’m talking right now. So I understand that you were invited and I get that and I appreciate your being here. 

But you start acting like all this technology is available and it 

is just as simple as installing it like it would be hooking up a garden hose. But you don’t even know what it costs and I don’t even 

actually know if the technology is actually there. 

And Mr. Brisini, is that right? Does the technology really exist 

that Mr. Walke is talking about? 

Mr. BRISINI. Well, this is very, very important. You can look at 

this and say what is—technically if you had all the money you 

wanted and all the money you needed and you had all the opportunity for design engineering could you design a technology to take 

out the difference. 

Yes, you probably could but nobody would be in business anymore, especially in Pennsylvania where we operate as competitive 

wholesale generators. We are not rate based. 

We are competitive companies no different than any other competitive company. We have to recover our costs from the PJM 

wholesale electric market. 

If you were to attempt to build a scrubber, and I do know what 

scrubbers cost because I have put them on coal-fired power plants 

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and I have put them on big plants and I know that they don’t go 

on little plants because the plants I used to take care of in many 

cases are now retired because they can’t afford to put it and they 

are considerably larger than these plants. 

In the case of a large coal-fired facility that I used to take care 

of as the environmental air quality manager it was a 1,700 megawatt facility. The scrubbers cost $675 million. 

You go to these small plants, and if you look at a dollar per ton 

you were starting with no control essentially of sulfur dioxide. 

Now you look at these plants. These plants are actually controlled and they are controlled to 93 percent. The scrubber gets to 

98 percent. So you are looking at this little difference of 5 percent. 

So if you look at a dollar per ton basis, all of a sudden you stick a $100 million dollar scrubber to get 5 percent more when in fact 

you have allowances going to retired units which are only going to 

sell them in the market so somebody can emit them, this is a net 

wash. 

All of this upwind downwind discussion is not an accurate reflection. This is about preserving the budget established by EPA. It is 

about having a pragmatic solution that works. 

It is about making it so everybody can be OK. But somebody 

can’t be OK because they want everything the way they want and 

there is a way to get to the right solution. 

Mr. MULLIN. Right. And just to sum it up, this isn’t as easy, Mr. 

Walke, as just putting a muffler on a car and that is how you make 

it sound. And I don’t mean to come across confrontational to you 

but you are here to testify. But yet you don’t have all your facts. 

I yield back. 

Mr. WHITFIELD. The gentleman yields back and that concludes 

the questions and concludes today’s hearing on these two pieces of 

legislation. 

Once again, I want to thank all of the witnesses for being here 

and for giving us your perspective on both of these pieces of legislation. 

We will keep the record open for ten days and we look forward 

to working with all of you as we make an effort to bring these bills 

to the floor. 

And do you have anything else, Jerry? OK. So that concludes the 

hearing. Thank you all once again. 

[Whereupon, at 12:15 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

EPA regulations impact nearly every facet of the American economy, especially 

manufacturers and energy producers. When unnecessary or duplicative, they can 

have a devastating impact, particularly in small communities where job opportunities are limited. That is why Congress needs to make targeted corrections when we 

believe the agency has gone too far. The SENSE Act and the BRICK Act are two 

bills that restore balance to EPA rulemaking and merit our support. 

The problem of coal refuse—the piles of unusable coal mixed with other materials 

near abandoned mines—is a very serious one in rural Pennsylvania and other coal 

mining areas. Coal refuse is a cause of air, water, and ground contamination problems in these communities. 

Fortunately, a solution has emerged. Coal refuse-to-energy plants have been developed that can use this waste material to generate electricity. About 20 such facilities are currently in operation, mostly in Pennsylvania. These power plants have 

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thus far removed 214 million tons of coal refuse from the environment, while producing energy and jobs. 

Given the proven environmental benefits of these facilities, one would hope EPA 

would support them, but instead the agency has issued two rules that threaten to 

close many of them down. Both the Cross State Air Pollution Rule (CSAPR) and the 

Mercury and Air Toxics Standards (MATS) apply to all types of coalfired power 

plants, but are ill-suited to the unique features of coal refuse-to-energy operations. 

Many owners of such facilities say that these rules may force them to shut their 

doors. 

Rep. Keith Rothfus has sponsored the SENSE Act that would provide relief for 

these much-needed facilities. This bill would make limited changes to the CSAPR 

and MATS rules in order to provide coal refuse-to-energy plants with an alternative 

means of compliance. It’s a win for the environment and a win for affordable energy 

and jobs in coal country. 

EPA has also targeted the brickmaking industry with stringent new emissions 

standards, commonly called Brick MACT. Meeting these standards is simply unrealistic for most brick makers, especially those that are small businesses. America’s 

131 brick facilities are major employers in their communities, like Forterra Brick 

in Corunna, Michigan. 

It is not clear that Brick MACT will survive judicial scrutiny either—EPA’s previous version of the rule in 2003 did not—but it may take several years before a 

final decision is handed down by the federal courts. 

The BRICK Act would provide a measure of relief for this industry. The bill would 

delay EPA’s compliance deadlines for the rule until after judicial review is completed. This will provide both additional time and much needed regulatory certainty 

for this sector. I thank my colleague Bill Johnson for his work on this draft bill. 

The SENSE Act and BRICK Act are two reasonable measures to help ensure that 

jobs are protected in two important sectors of the economy. I urge my colleagues 

to support this legislation. 

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