[Congressional Record Volume 157, Number 109 (Wednesday, July 20, 2011)]
[Senate]
[Pages S4724-S4727]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself, Mr. Wyden, Mr. Alexander, Ms. 
        Landrieu, Mr. Toomey, and Mr. Pryor):
  S. 1392. A bill to provide additional time for the Administrator of 
the Environmental Protection Agency to issue achievable standards for 
industrial, commercial, and institutional boilers, process heaters, and 
incinerators, and for other purposes; to the Committee on Environment 
and Public Works.
  Ms. COLLINS. Mr. President, I rise today to introduce the EPA 
Regulatory Relief Act of 2011. I am pleased to be joined in this effort 
by my colleagues Senators Wyden, Alexander, Landrieu, Pryor, and 
Toomey. Our legislation is straight forward: it would allow the EPA the 
time it needs, by its own estimate, to adequately consider and propose 
a reasonable, workable rule that affects boilers.
  Our bill includes four key provisions. First, it provides the EPA 
with the 15 months it requested to properly analyze the best methods 
for implementing the application of the Clean Air Act to certain 
boilers. Second, it will give businesses adequate time to comply with 
any requirements the EPA adopts by extending the compliance deadline 
from 3 years to 5 years. Third, our bill will direct the EPA, when 
developing the new rules, to ensure that renewable and carbon-neutral 
materials remain classified as fuel and not solid waste. Fourth, our 
legislation will help ensure that the rules are achievable by real-
world standards consistent with the President's directive to improve 
Federal regulations.
  At a time when manufacturers are struggling to retain jobs, it is 
essential that this rule not jeopardize thousands of jobs in 
manufacturing, particularly in the forest products industry, by 
imposing billions of dollars of new costs. Our legislation provides 
common sense solutions to the challenges the EPA is facing in 
attempting to draft and implement these complicated rules, which if 
written without proper data, analysis, and consideration, would cost 
the industry billions of dollars and potentially thousands of jobs.
  To be sure, the EPA performs some vital functions in helping to 
ensure that the air we breathe is clean and the water we drink is safe. 
We need, however, to make sure that as the EPA issues new regulations, 
it does not create so many roadblocks to economic growth that it 
discourages private investment, which is the key to maintaining and 
creating jobs.
  The EPA's proposed ``boiler MACT'' rules, which would affect tens of 
thousands of boilers, have been an issue of great concern to many of my 
constituents in Maine. The forest products industry, in particular, is 
the economic backbone of many rural areas in our country, including in 
Maine. Mill managers and workers in Maine have expressed their concern 
to me about the impact of imposing excessively costly regulations on 
their mills at this time of economic hardship.
  Since these rules were first proposed in April 2010, I have been very 
troubled that the cost of implementation would

[[Page S4725]]

be far greater than EPA originally estimated. According to industry 
estimates, this rule could cost Maine businesses alone hundreds of 
millions of dollars and put many jobs at risk, when less expensive 
approaches could be used to address emissions from boilers. This is 
simply unacceptable in this economic climate.
  Furthermore, these rules might force some of our mills in Maine to 
stop using biomass, a source of renewable energy, and instead dump the 
biomass in landfills and switch to fossil fuels. This makes no sense. 
As the President has stated, biomass is an important renewable energy 
source that our nation should promote in working to reduce our 
dependence on foreign oil. Converting to fossil fuels alone would also 
cost mills hundreds of millions of dollars.

  My colleagues and I have been concerned about this issue since the 
EPA proposed these new boiler MACT rules in April 2010. Last year, 40 
of my Senate colleagues, including 17 Democrats, wrote to the EPA 
expressing our deep concern that the boiler MACT regulations would 
impose onerous burdens on U.S. manufacturers. We asked the EPA to set 
emissions standards based on what real-world, best-performing units 
actually can achieve. This letter reflected the widespread bipartisan 
concern about the proposed boiler MACT rules.
  It is important to remember that, under The Clean Air Act, a Maximum 
Achievability Control Technology rule, or ``MACT'' rule, is designed to 
reduce emissions to an achievable degree while also considering the 
economic impact on businesses. The MACT rule must also set its standard 
according to the best performing practices existing facilities. 
However, in the case of the boiler MACT rule, the EPA cherry-picked 
data without considering the real world operating practices of the 
facilities that will be affected by this rule.
  In March 2011, I also asked Administrator Jackson at a hearing to 
explain why the EPA is not considering alternative standards for 
emissions since the MACT limits may be far more stringent than 
necessary to protect public health. Additionally, I have pressed 
officials at the Office of Management and Budget, such as Administrator 
of the Office of Regulatory Affairs, Cass Sunstein, about the very 
negative impacts EPA's Boiler MACT rules would have on the forest 
products industry.
  In 2010, the EPA did request more time from the court to analyze and 
prepare the boiler MACT rules after it received thousands of comments 
that raised technical and cost concerns the agency had not originally 
considered. In response, the EPA appealed for an additional 15 months 
to implement the rule, noting that the public interest would be best 
served if it could obtain additional input from the public on these 
complex rules. Unfortunately, this plea was rejected by the D.C. 
District Court, and the agency was forced to re-propose the rule in a 
mere 30 days.
  The stakes are too high for the EPA to be forced to rush a complex, 
multi-step process that could cost thousands of American jobs. Our bill 
will provide a balance that will help the EPA protect the environment 
and public health while ensuring that businesses in Maine and 
throughout the country are not faced with needlessly onerous burdens.
  The EPA has claimed that the cost of the final rule has been lowered 
by 50 percent since the proposed rule last year; however, this is 
little comfort to manufacturers because the initial rule, according to 
industry estimates, was approximately $4 billion in capital costs to 
the forest industry and over $14 billion for all industrial sectors 
nationwide. The industry experts that I've talked with are very 
concerned that the standards are being set so high that they are going 
to have to make a massive new investment at a time when they can least 
afford it.
  The EPA is making progress in reducing the costs and coming up with a 
more practical approach to the boiler MACT rules, and I believe we can 
achieve the health benefits that we desire without putting thousands of 
people out of work. This bill will help ensure that result.
  I look forward to working with my colleagues on both sides of the 
aisle to ensure that the EPA has sufficient time to propose a well 
thought-out rule that minimizes the negative effect on the economy, 
while helping to protect public health and the environment.
  Mr. President, I ask unanimous consent that a letter of support be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    July 20, 2011.
     Hon. Susan Collins,
     U.S. Senate, Washington, DC.
     Hon. Ron Wyden,
     U.S. Senate, Washington, DC.
       Dear Senators: We are writing to express our united and 
     strong support for legislation you are introducing today and 
     for H.R. 2250, the ``EPA Regulatory Relief Act of 2011,'' 
     bipartisan legislation to address the serious concerns that 
     remain with EPA's Boiler MACT rules. As they exist today, the 
     final Boiler MACT rules will have serious economic impacts on 
     a vast array of facilities across the industrial, commercial 
     and institutional sectors. These rules place at risk tens of 
     thousands of high-paying manufacturing jobs that our nation 
     cannot afford to lose.
       As finalized, the Boiler MACT rules are unaffordable, just 
     as the proposed rules were. The rules are not achievable for 
     real-world boilers across the range of fuels and operating 
     conditions. EPA also has created a presumption that materials 
     commonly used as fuels are wastes subject to the extremely 
     costly and stigmatizing incinerator standards. This would not 
     only impose billions of dollars in unreasonable costs, but it 
     also would cause millions of tons of valuable materials to be 
     diverted to landfills and replaced with fossil fuel--a bad 
     result for the environment.
       As EPA has acknowledged, the rules were finalized with 
     serious flaws because EPA was forced to meet a strict court-
     ordered deadline. The final Boiler MACT rule alone would cost 
     over $14 billion in capital for the manufacturing sector, 
     plus billions more in annual operating costs. Complying with 
     the incinerator standards could cost several billion dollars 
     more in capital.
       Legislation is needed to resolve serious uncertainties and 
     vulnerabilities, including to: ensure the rules are stayed 
     for an adequate and certain period, as EPA's current 
     administrative stay is being challenged in court; allow EPA 
     adequate time to re-propose the rules and get them right, 
     including time for stakeholders to conduct more emissions 
     testing and to avoid mistakes that occur when rulemakings of 
     this scope and importance are rushed and become vulnerable to 
     legal challenge; provide direction and support for EPA to use 
     the discretion it already has under the Clean Air Act and 
     Executive Order 13563 to add flexibility and make the rules 
     achievable; clarify that using non-hazardous materials as 
     fuels does not result in boilers being treated as 
     incinerators; and give facilities more time to comply with 
     the complex and capital-intensive requirements of the 
     rules.
       If enacted, the ``EPA Regulatory Relief Act'' will provide 
     the much-needed certainty and time for EPA to get the rules 
     right and for businesses that will be investing billions of 
     dollars to rationally plan for the capital expenses. This 
     legislation will preserve jobs and the competitiveness of the 
     U.S. manufacturing sector while protecting the environment.
       Thank you for your leadership on this issue of great 
     importance to our industries and our workers.
           Sincerely,
         American Forest & Paper Association, American Chemistry 
           Council, American Home Furnishings Alliance, American 
           Petroleum Institute, American Wood Council, Association 
           of American Railroads, Biomass Power Association, Brick 
           Industry Association, Business Roundtable, Cement Kiln 
           Recycling Coalition, Composite Panel Association, 
           Construction Materials Recycling Association, Corn 
           Refiners Association, and Council of Industrial Boiler 
           Owners.
         Hardwood Plywood and Veneer Association, International 
           Falls Chamber of Commerce (MN), National Association of 
           Manufacturers, National Federation of Independent 
           Business, National Oilseed Processors Association, 
           National Solid Wastes Management Association, NORA, An 
           Association of Responsible Recyclers (formerly the 
           National Oil Recyclers Association), Rubber 
           Manufactures Association, Society of Chemical 
           Manufacturers and Affiliates, The International 
           Association of Machinists and Aerospace Workers, The 
           United Brotherhood of Carpenters and Joiners of 
           America, Treated Wood Council, U.S. Chamber of 
           Commerce, and Virginia Forestry Association.

  Mr. WYDEN. Mr. President, biomass energy development is not only a 
great economic opportunity for Oregon, it is an essential piece of the 
forest health puzzle. Biomass energy helps create a market and a way to 
pay for forest thinning and hazardous fuels programs. It is also a way 
for keeping local timber and wood products mills in business at a time 
when the industry, like many

[[Page S4726]]

in the U.S. is going through hard times. Biomass also provides an 
important renewable energy option for the Nation as a substitute for 
coal and other fossil fuels. Every region of the country has biomass 
energy opportunities even if the exact nature of the biomass that would 
be used varies from region to region. Today, I am joining my colleague 
from Maine, Senator Collins, and a bipartisan group of Senators, in 
introducing legislation to make sure that the U.S. Environmental 
Protection Agency can, and will, issue regulations under the Clean Air 
Act and the Solid Waste Disposal Act that ensure that the owners of 
these mills and biomass energy plants can continue to invest in them 
and maintain and create the jobs that are so badly needed.
  Pending Environmental Protection Agency regulations governing boilers 
and incinerators will make it very difficult for biomass energy to be 
used in the U.S. To its credit, EPA recognizes this fact and has 
repeatedly proposed to rewrite those regulations to address the 
concerns of biomass energy users, the forest products industry, and 
other industries. The legislation being introduced today is aimed at 
making sure that EPA can collect the necessary data and reissue its 
regulations in an orderly process that preserves biomass energy as a 
national energy option and allows economically hard pressed timber and 
forest products mills to remain in operation.
  On December 7, 2010, EPA, which was under court order to issue new 
Clean Air Act regulations for boilers and incinerators, filed a request 
with the Federal Court overseeing the boiler emissions rules asking for 
a delay in the court-ordered deadline for issuing the rules by 15 
months so that EPA could reevaluate its own proposed rules and address 
the problems raised by the forest products industry and others. 
However, the Federal judge hearing the case rejected EPA's request and 
gave EPA just a month to fix the rule. In February 2011, EPA met that 
deadline, but continuing to recognize the flaws in its regulations, it 
immediately triggered an administrative process known as 
reconsideration to allow affected industries to provide more 
information and for the agency to revise its regulations. In May, EPA 
agreed with industry comments that the rule needed to be reviewed and 
it agreed to stay, or delay, the implementation of the existing Clean 
Air Act rules for boilers and incinerators. Unfortunately, EPA did not 
issue a stay of a related rule which defines which materials can be 
burned in those boilers and which need to be burned in incinerators. 
EPA has now proposed a schedule, which it confirmed in letters to me 
and several other Senators, to consider additional comments by industry 
and others and develop new Clean Air Act rules.
  Unfortunately, this is not the end of the story. Stays can be lifted 
by the courts. This legislation would statutorily affirm the EPA's stay 
of the Clean Air Act rules. And it would affirm EPA's proposal to issue 
new regulations by a date certain. That date would be 15 months from 
the date of enactment, the same period of time EPA claimed was 
necessary to draft a new rule. The goal here, which I believe EPA 
shares, is to issue Clean Air Act regulations that make sense, not to 
do away with Clean Air Act regulations for boilers and incinerators.
  On the other hand, by not agreeing to make changes to the ``what's a 
fuel and what's not'' rule, EPA has made it very likely that many 
widely used boiler fuels can no longer be used, like wood scrap from 
door and window mills. And some results of the rule make little 
practical sense. For example, scrap tires that are picked up at a tire 
shop can continue to be burned as a fuel. Scrap tires that are picked 
up at a landfill cannot. EPA has indicated that it will try to develop 
regulatory guidance to help industry navigate the regulatory confusion 
it has created.
  I appreciate the fact that EPA recognizes that there is a problem 
with the fuel-or-waste rule and that they are offering to try to fix it 
by issuing regulatory guidance. However, I am not convinced that EPA 
can fix the problems with the rule by just by issuing guidance. This 
legislation will direct EPA to establish new rules on what materials 
can be burned as boiler fuel, and which cannot, and give EPA clear 
statutory direction on what can be included. This direction limits 
allowable fuels to a specific list so that there are no surprises or 
backdoor exceptions. EPA can add to the list only after notice and 
comment so the public knows what, if any, additions are being made.
  This process for defining which fuels can be burned in a boiler and 
which cannot is very important to me. While it makes sense to continue 
to allow many materials that the wood products industry and others have 
used as boiler fuels for generations, I do not think that it's 
appropriate to simply decide that any fuel that was used in a boiler in 
the past should be grandfathered in. The provisions in this bill 
defining what materials can be burned in a boiler ensure that will not 
be the case. This was a major issue in litigation surrounding earlier 
versions of these rules and I do not think it is wise to ignore this 
fact. Congress has the opportunity to try to address the legitimate 
concerns about what is being burned in these boilers and it should.
  Finally, the bill would extend the normal 3 year period for boilers 
to come into compliance to 5 years. It is my hope that once there a 
final regulations and industry knows what it has to do that it will not 
take that long. However, there some 2000 boilers in the U.S. that would 
all have to upgrade or replace their units all at the same time and 
coincident with similar rules going into effect for electric utility 
company boilers. This extra time will mean that there will be no excuse 
for not meeting the final standards.
  Mr. President, I ask unanimous consent that letters of support be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                U.S. Environmental


                                            Protection Agency,

                                    Washington, DC, June 27, 2011.
     Hon. Ron Wyden,
     U.S. Senate,
     Washington, DC.
       Dear Senator Wyden: I appreciate the opportunity to meet 
     with you on June 16, 2011, regarding the Environmental 
     Protection Agency's (EPA) Non-Hazardous Secondary Materials 
     (NHSM) rule, the Boiler Maximum Achievable Control Technology 
     (MACT) rule, and the Commercial and Industrial Solid Waste 
     Incinerators (CISWI) rule. Thank you for your constructive 
     engagement on these priority issues. We are currently 
     exploring various pathways under existing authority to 
     address your concerns.
       As you know, the Boiler MACT and CISWI standards are 
     currently subject to an administrative stay. Today, as part 
     of a filing with the United States Court of Appeals for the 
     District of Columbia Circuit, the EPA announced the intended 
     schedule for reconsideration of the boilers and CISWI rules. 
     To ensure that the agency's standards are based on the best 
     available data and that the public is given ample opportunity 
     to provide additional input and information, the agency 
     intends to propose the reconsideration rule by the end of 
     October 2011 and issue a final rule by the end of April 2012. 
     This is the best approach to establish technically and 
     legally sound standards that will bring significant health 
     benefits to the American public.
       We believe that this stay and the reconsideration period 
     will provide ample time to administratively address the 
     issues raised by various stakeholders on these corresponding 
     rules.
       The NHSM rule, which we discussed in our meeting, aims to 
     ensure that the burning of solid waste is subject to 
     appropriate emission controls required under the Clean Air 
     Act and that exposure to harmful pollutants is minimized. We 
     understand that biomass derivatives have long been used for 
     energy purposes in the wood products industry and we believe 
     our rule allows such use to continue without being subject to 
     the CISWI standards, provided that criteria, referred to as 
     ``legitimacy'' criteria, are met.
       Since promulgation of our rule, questions have arisen about 
     how these criteria will be applied and our goal has been to 
     ensure that the flexibility provided by the rule is in fact 
     realized. To that end, we have held several meetings with 
     industry representatives to discuss and understand their 
     concerns and to review newly available data. In addition, on 
     June 21, 2011, my Assistant Administrator for Solid Waste and 
     Emergency Response, Mathy Stanislaus, met with 
     representatives of several industries that use biomass 
     derivatives and other non-hazardous secondary materials as 
     fuel to ensure that they understand the significant 
     flexibility already afforded by the rule, and to discuss the 
     EPA's concepts for further clarifying that flexibility.
       As part of that discussion, Mr. Stanislaus explained that 
     one of the options that EPA is considering is issuing 
     clarifying guidance regarding the Agency's legitimacy 
     criteria. Such guidance is a useful tool that is often used 
     under the Resource Conservation and Recovery Act (RCRA) to 
     address these types of issues. The guidance could provide a 
     clear guidepost for comparing traditional fuels with 
     secondary materials. It potentially could clarify that 
     certain nonhazardous secondary materials would not be 
     considered

[[Page S4727]]

     solid waste when combusted and that the units combusting 
     those materials can continue to be used as fuels without 
     having to meet the CISWI standards. Mr. Stanislaus requested 
     that the industry representatives provide the Agency with 
     supporting data on traditional fuels that could further 
     inform the development of such guidance, and asked for 
     feedback on the approach he outlined. In addition to this 
     approach, the Agency is also exploring other options.
       We recognize that stakeholders have also raised other 
     issues with the NHSM rule. We are continuing to evaluate 
     those issues expeditiously.
       I believe we have made significant progress in addressing 
     the concerns raised by the industry. I will continue to watch 
     the issue closely and keep you informed. My goal is to bring 
     these issues to closure as soon as possible.
           Sincerely,
                                                  Lisa P. Jackson,
     Administrator.
                                  ____

         U.S. Environmental Protection Agency, Office of Solid 
           Waste and Emergency Response,
                                    Washington, DC, July 11, 2011.
     Hon. Ron Wyden,
     U.S. Senate,
     Washington, DC.
       Dear Senator Wyden: Thank you again for the constructive 
     dialogue regarding issues relating to EPA's Non-Hazardous 
     Secondary Materials (NHSM) rule, the Boiler Maximum 
     Achievable Control Technology (MACT) rule and the Commercial 
     and Industrial Solid Waste Incinerator (CISWI) rule. In the 
     Administrator's letter of June 27, 2011 she indicated that 
     the agency is exploring various pathways to address your 
     specific concerns regarding implementation of the NHSM rule. 
     EPA is committed to issuing guidance to assist industry in 
     applying the legitimacy criteria, and had requested that 
     industry representatives provide the agency with supporting 
     data to further inform the development of such guidance.
       We received additional information from industry and based 
     on this information and further discussions, we have 
     developed the enclosed concept paper for the development of 
     guidance. The paper identifies approaches to the guidance 
     that EPA continues to evaluate for determining whether 
     concentrations of contaminants in the NHSM are ``comparable'' 
     to concentrations of those same contaminants in traditional 
     fuels. These comparisons are important in ensuring that NHSM 
     are being legitimately recycled and are not solid wastes, as 
     well as recognizing the varied uses of such secondary 
     materials as product fuels.
       We are optimistic about our ability to develop guidance 
     that meaningfully addresses the industry concerns and we are 
     giving it the highest priority within the agency. We intend 
     to complete internal development of draft guidance based on 
     the concept paper by August 31, 2011. In addition, we 
     continue to evaluate all available options available to 
     address the issues raised.
       Please be assured that EPA will continue to keep you 
     informed of our progress in addressing the issues involved 
     with the NHSM rule, as well as the related Clean Air Act 
     rulemakings. If you or your staff have any questions 
     regarding the enclosed concept paper, please contact me or 
     your staff may call Carolyn Levine in EPA's Office of 
     Congressional and Intergovernmental Relations at (202) 564-
     1859.
           Sincerely,
                                                 Mathy Stanislaus,
     Assistant Administrator.

                          ____________________