[House Report 112-213]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-213

======================================================================

 
PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 2401) TO REQUIRE ANALYSES 
OF THE CUMULATIVE AND INCREMENTAL IMPACTS OF CERTAIN RULES AND ACTIONS 
     OF THE ENVIRONMENTAL PROTECTION AGENCY, AND FOR OTHER PURPOSES

                                _______
                                

 September 20, 2011.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

           Mr. Bishop of Utah, from the Committee on Rules, 
                        submitted the following

                              R E P O R T

                       [To accompany H. Res. 406]

    The Committee on Rules, having had under consideration 
House Resolution 406, by a nonrecord vote, report the same to 
the House with the recommendation that the resolution be 
adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of H.R. 2401, the 
Transparency in Regulatory Analysis of Impacts on the Nation 
Act of 2011, under a structured rule. The resolution provides 
two hours of general debate equally divided and controlled by 
the chair and ranking minority member of the Committee on 
Energy and Commerce. The resolution waives all points of order 
against consideration of the bill. The resolution provides that 
the amendment in the nature of a substitute recommended by the 
Committee on Energy and Commerce now printed in the bill shall 
be considered as an original bill for the purpose of amendment 
and shall be considered as read. The resolution waives all 
points of order against the committee amendment in the nature 
of a substitute. The resolution further makes in order only 
those amendments printed in this report. Each such amendment 
may be offered only in the order printed in this report, may be 
offered only by a Member designated in this report, shall be 
considered as read, shall be debatable for the time specified 
in this report equally divided and controlled by the proponent 
and an opponent, shall not be subject to amendment, and shall 
not be subject to a demand for division of the question in the 
House or in the Committee of the Whole. All points of order 
against the amendments printed in this report are waived. 
Finally, the resolution provides one motion to recommit with or 
without instructions.

                         EXPLANATION OF WAIVERS

    Although the resolution waives all points of order against 
consideration of the bill, the Committee is not aware of any 
points of order against its consideration. The waiver of all 
points of order is prophylactic.
    Although the resolution waives all points of order against 
the committee amendment in the nature of a substitute to H.R. 
2401, the Committee is not aware of any points of order against 
the amendment in the nature of a substitute. The waiver of all 
points of order is prophylactic.
    Although the resolution waives all points of order against 
the amendments printed in this report, the Committee is not 
aware of any points of order against the amendments. The waiver 
of all points of order is prophylactic in nature.

                  SUMMARY OF AMENDMENTS MADE IN ORDER

    1. Rush (IL): Would add the Chair of the Council on 
Environmental Quality, the Secretary of Health and Human 
Services, as well as the Director of the Centers for Disease 
Control and Prevention, among others, to the interagency 
council that this bill would create. Additionally, the 
amendment would direct the committee to look at important 
health impacts on the most vulnerable subpopulations that would 
be affected by EPA's proposed rules. (10 minutes)
    2. McNerney (CA): Would add the effect on clean energy jobs 
and clean energy companies, including those that export clean 
energy technology, to the items to be considered in the 
analyses required by the bill. (10 minutes)
    3. Moore, Gwen (WI): Would ensure that the study will 
analyze the impact that a rule or action could have on low-
income communities and public health. (10 minutes)
    4. Capps (CA): Would require the committee to include in 
its analyses an estimate of the incidence of birth and 
developmental defects and infant mortality that would result 
from a delay to covered rules and covered actions under the 
bill. (10 minutes)
    5. Kinzinger (IL), Gonzalez (TX): Would add upcoming EPA 
gasoline regulations to the list of measures to be analyzed for 
their cumulative impact on energy prices, jobs, and American 
competitiveness. (10 minutes)
    6. Dent (PA): Would add the U.S. Environmental Protection 
Agency's (EPA) National Emission Standards for Hazardous Air 
Pollutants (NESHAP) from the Portland Cement Manufacturing 
Industry and Standards of Performance for Portland Cement 
Plants to the Covered Rules within the bill. (10 minutes)
    7. Hastings, Alcee (FL): Would exclude from the committee's 
jurisdiction all rules and regulations that undergo a cost-
benefit analysis as a part of existing regulatory requirements. 
(10 minutes)
    8. Connolly (VA): Would require the committee to study 
policies which will lead to creation of American jobs in the 
clean energy sector. (10 minutes)
    9. Jackson Lee (TX): Would extend the public comment period 
from 90 days to 120 days. (10 minutes)
    10. Whitfield (KY): Would provide that the Cross State Air 
Pollution Rule has no legal force or effect, and directs EPA to 
continue to apply the Clean Air Interstate Rule (CAIR) for at 
least 3 years until after the study in the underlying bill is 
complete. The amendment also requires that the proposed Utility 
Maximum Achievable Control Technology (MACT) rule has no legal 
force and effect and that any subsequent Utility MACT rule be 
issued no sooner than 1 year after the study in the underlying 
bill is complete. If reissuing the rule, EPA is required to 
ensure that MACT standards are achievable in practice and that 
the compliance period is at least 5 years. (10 minutes)
    11. Latta (OH): Would update the Clean Air Act's criteria 
for what factors can be considered when promulgating National 
Ambient Air Quality Standards (NAAQS). Specifically, it would 
allow the EPA Administrator to consider feasibility and cost 
when setting these standards, which would negate the effect of 
a 2001 Supreme Court ruling that held implementation costs 
cannot be considered when setting NAAQS. (10 minutes)
    12. Richardson (CA): Would strike the offset provision of 
H.R. 2401, which would reduce funding to the Diesel Emission 
Reductions Act. (10 minutes)

                 TEXT OF AMENDMENTS TO BE MADE IN ORDER

1. An Amendment To Be Offered by Representative Rush of Illinois or His 
                   Designee, Debatable for 10 Minutes

  In section 2(b)(3), insert ``and the Deputy Secretary of 
Labor'' before the period.
  In section 2(b)(4), insert ``and the Deputy Secretary of 
Energy'' before the period.
  At the end of section 2(b), add the following:
          (12) The Chair of the Council on Environmental 
        Quality.
          (13) The Secretary of the Interior.
          (14) The Secretary of Health and Human Services.
          (15) The Director of the Centers for Disease Control 
        and Prevention.
          (16) The Director of the National Institute of 
        Environmental Health Sciences.
  Amend section 2(c) to read as follows:
  (c) Chair.--The Secretary of Commerce and the Chair of the 
Council on Environmental Quality shall serve as co-chairs of 
the Committee. In carrying out the functions of the Chair, the 
co-chairs shall consult with the members of the Committee.
  In section 2(d), insert ``stakeholders and relevant experts, 
including'' after ``reports issued by,''.
  In section 3(b)(1), insert after subparagraph (D) the 
following (and redesignate accordingly):
                  (E) any resulting change in the incidences of 
                asthma and asthma attacks and other pulmonary 
                disease;
                  (F) any resulting change in the occurrence of 
                birth and developmental defects;
                  (G) any resulting change in the occurrence of 
                premature mortality;
                  (H) any resulting change in the occurrence of 
                other adverse health effects;
                  (I) the effect on clean energy jobs;
                  (J) the effect on clean energy companies, 
                including companies that export clean energy 
                technology;
                  (K) the effect on regional air quality, 
                including any resulting change in the 
                impairment of visibility, due to reduced 
                pollution;
                  (L) the effect on the water quality of lakes 
                and streams;
                  (M) any resulting change in the number of 
                work days missed;
                  (N) any resulting change in the number of 
                school days missed;
                  (O) any resulting change in the use of 
                emergency medical services;
  In section 3(b)(4), insert after subparagraph (D) the 
following (and redesignate accordingly):
                  (E) vulnerable subpopulations, including the 
                elderly, pregnant women, and populations with 
                pulmonary disease;
                  (F) the environment, including impacts on 
                global climate change;
                  (G) development of infants and children;
                              ----------                              


2. An Amendment To Be Offered by Representative McNerney of California 
               or His Designee, Debatable for 10 Minutes

  Page 6, line 22, strike ``; and'' and insert a semicolon.
  Page 6, line 24, strike the period and insert ``; and''.
  Page 6, after line 24, insert the following new subparagraph:
                  (G) the effect on clean energy jobs and clean 
                energy companies, including companies that 
                export clean energy technology.
                              ----------                              


 3. An Amendment To Be Offered by Representative Moore of Wisconsin or 
                 Her Designee, Debatable for 10 Minutes

  Page 7, after line 10, insert the following new subparagraphs 
(and redesignate accordingly):
                  (E) low-income communities;
                  (F) public health;
                              ----------                              


4. An Amendment To Be Offered by Representative Capps of California or 
                 Her Designee, Debatable for 10 Minutes

  Page 7, after line 15, insert the following new paragraph:
          (5) Estimates of the impacts of delaying the covered 
        rules and covered actions on the incidence of birth and 
        developmental defects and infant mortality.
                              ----------                              


 5. An Amendment To Be Offered by Representative Kinzinger of Illinois 
               or His Designee, Debatable for 10 Minutes

  At the end of section 3(e)(2), add the following:
                  (D) Any rule addressing fuels under title II 
                of the Clean Air Act (42 U.S.C. 7521 et seq.) 
                as described in the Unified Agenda of Federal 
                Regulatory and Deregulatory Actions under 
                Regulatory Identification Number 2060-AQ86, or 
                any substantially similar rule, including any 
                rule under section 211(v) of the Clean Air Act 
                (42 U.S.C. 7545(v)).
                              ----------                              


6. An Amendment To Be Offered by Representative Dent of Pennsylvania or 
                 His Designee, Debatable for 10 Minutes

  Page 9, after line 20, insert the following:
                  (I) ``National Emission Standards for 
                Hazardous Air Pollutants from the Portland 
                Cement Manufacturing Industry and Standards of 
                Performance for Portland Cement Plants'', 
                published at 75 Fed. Reg. 54970 (September 9, 
                2010).
                              ----------                              


7. An Amendment To Be Offered by Representative Hastings of Florida or 
                 His Designee, Debatable for 10 Minutes

  Page 10, after line 12, insert the following new subsection 
(and redesignate accordingly):
  (f) Exclusion From Review.--Notwithstanding subsection (e), 
the Committee may not include in the analyses conducted under 
section 3 consideration of any rule or guideline promulgated in 
compliance with Executive Order 12866 (58 Fed. Reg. 51735, 
relating to regulatory planning and review) or the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
  Beginning on page 11, line 17, strike section 5 (and 
redesignate accordingly).
                              ----------                              


8. An Amendment To Be Offered by Representative Connolly of Virginia or 
                 His Designee, Debatable for 10 Minutes

  Page 10, after line 24, insert the following:
  (g) Additional Analyses.--The Committee shall conduct or 
commission studies to identify pollution control policies that 
should be adopted and implemented by the United States to 
provide domestic job growth and ensure that the Nation is 
internationally competitive in the $5 trillion global energy 
industry for clean energy technology development and 
manufacturing.
                              ----------                              


9. An Amendment To Be Offered by Representative Jackson Lee of Texas or 
                 Her Designee, Debatable for 10 Minutes

  Page 11, line 10, strike ``90'' and insert ``120''.
                              ----------                              


10. An Amendment To Be Offered by Representative Whitfield of Kentucky 
               or His Designee, Debatable for 10 Minutes

  Strike section 5 and insert the following:

SEC. 5. ADDITIONAL PROVISIONS RELATING TO CERTAIN RULES.

  (a) Cross-State Air Pollution Rule/Transport Rule.--
          (1) Earlier rules.--The rule entitled ``Federal 
        Implementation Plans: Interstate Transport of Fine 
        Particulate Matter and Ozone and Correction of SIP 
        Approvals'', published at 76 Fed. Reg. 48208 (August 8, 
        2011), and any successor or substantially similar rule, 
        shall be of no force or effect, and shall be treated as 
        though such rule had never taken effect.
          (2) Continued applicability of clean air interstate 
        rule.--In place of any rule described in paragraph (1), 
        the Administrator of the Environmental Protection 
        Agency (in this section referred to as the 
        ``Administrator'') shall continue to implement the 
        Clean Air Interstate Rule.
          (3) Additional rulemakings.--
                  (A) Issuance of new rules.--The 
                Administrator--
                          (i) shall not issue any proposed or 
                        final rule under section 
                        110(a)(2)(D)(i)(I) or section 126 of 
                        the Clean Air Act (42 U.S.C. 
                        7410(a)(2)(D)(i)(I), 7426) relating to 
                        national ambient air quality standards 
                        for ozone or particulate matter 
                        (including any modification of the 
                        Clean Air Interstate Rule) before the 
                        date that is 3 years after the date on 
                        which the Committee submits the final 
                        report under section 4(c); and
                          (ii) in issuing any rule described in 
                        clause (i), shall base the rule on 
                        actual monitored (and not modeled) data 
                        and shall, notwithstanding section 
                        110(a)(2)(D)(i)(I), allow the trading 
                        of emissions allowances among entities 
                        covered by the rule irrespective of the 
                        States in which such entities are 
                        located.
                  (B) Implementation schedule.--In promulgating 
                any final rule described in subparagraph 
                (A)(i), the Administrator shall establish a 
                date for State implementation of the standards 
                established by such final rule that is not 
                earlier than 3 years after the date of 
                publication of such final rule.
          (4) Definition of clean air interstate rule.--For 
        purposes of this section, the term ``Clean Air 
        Interstate Rule'' means the Clean Air Interstate Rule 
        and the rule establishing Federal Implementation Plans 
        for the Clean Air Interstate Rule as promulgated and 
        modified by the Administrator (70 Fed. Reg. 25162 (May 
        12, 2005), 71 Fed. Reg. 25288 (April 28, 2006), 72 Fed 
        Reg. 55657 (Oct. 1, 2007), 72 Fed. Reg. 59190 (Oct. 19, 
        2007), 72 Fed. Reg. 62338 (Nov. 2, 2007), 74 Fed. Reg. 
        56721 (Nov. 3, 2009)).
  (b) Steam Generating Unit Rules.--
          (1) Earlier rules.--The proposed rule entitled 
        ``National Emission Standards for Hazardous Air 
        Pollutants From Coal- and Oil-Fired Electric Utility 
        Steam Generating Units and Standards of Performance for 
        Fossil-Fuel-Fired Electric Utility, Industrial-
        Commercial- Institutional, and Small Industrial-
        Commercial-Institutional Steam Generating Units'' 
        published at 76 Fed. Reg. 24976 (May 3, 2011), and any 
        final rule that is based on such proposed rule and is 
        issued prior to the date of the enactment of this Act, 
        shall be of no force and effect, and shall be treated 
        as though such proposed or final rule had never been 
        issued. In conducting analyses under section 3(a), the 
        Committee shall analyze the rule described in section 
        3(e)(1)(E) (including any successor or substantially 
        similar rule) as if the preceding sentence did not 
        apply to such rule.
          (2) Promulgation of final rules.--In place of the 
        rules described in paragraph (1), the Administrator 
        shall--
                  (A) issue regulations establishing national 
                emission standards for coal-and oil-fired 
                electric utility steam generating units under 
                section 112 of the Clean Air Act (42 U.S.C. 
                7412) with respect to each hazardous air 
                pollutant for which the Administrator finds 
                such regulations are appropriate and necessary 
                pursuant to subsection (n)(1)(A) of such 
                section;
                  (B) issue regulations establishing standards 
                of performance for fossil-fuel-fired electric 
                utility, industrial-commercial-institutional, 
                and small industrial-commercial-institutional 
                steam generating units under section 111 of the 
                Clean Air Act (42 U.S.C. 111); and
                  (C) issue the final regulations required by 
                subparagraphs (A) and (B)--
                          (i) after issuing proposed 
                        regulations under such subparagraphs;
                          (ii) after consideration of the final 
                        report submitted under section 4(c); 
                        and
                          (iii) not earlier than the date that 
                        is 12 months after the date on which 
                        the Committee submits such report to 
                        the Congress, or such later date as may 
                        be determined by the Administrator.
          (3) Compliance provisions.--
                  (A) Establishment of compliance dates.--In 
                promulgating the regulations under paragraph 
                (2), the Administrator--
                          (i) shall establish a date for 
                        compliance with the standards and 
                        requirements under such regulations 
                        that is not earlier than 5 years after 
                        the effective date of the regulations; 
                        and
                          (ii) in establishing a date for such 
                        compliance, shall take into 
                        consideration--
                                  (I) the costs of achieving 
                                emissions reductions;
                                  (II) any non-air quality 
                                health and environmental impact 
                                and energy requirements of the 
                                standards and requirements;
                                  (III) the feasibility of 
                                implementing the standards and 
                                requirements, including the 
                                time needed to--
                                          (aa) obtain necessary 
                                        permit approvals; and
                                          (bb) procure, 
                                        install, and test 
                                        control equipment;
                                  (IV) the availability of 
                                equipment, suppliers, and 
                                labor, given the requirements 
                                of the regulations and other 
                                proposed or finalized 
                                regulations; and
                                  (V) potential net employment 
                                impacts.
                  (B) New sources.--With respect to the 
                regulations promulgated pursuant to paragraph 
                (2)--
                          (i) the date on which the 
                        Administrator proposes a regulation 
                        pursuant to paragraph (2)(A) 
                        establishing an emission standard under 
                        section 112 of the Clean Air Act (42 
                        U.S.C. 7412) shall be treated as the 
                        date on which the Administrator first 
                        proposes such a regulation for purposes 
                        of applying the definition of a new 
                        source under section 112(a)(4) of such 
                        Act (42 U.S.C. 7412(a)(4));
                          (ii) the date on which the 
                        Administrator proposes a regulation 
                        pursuant to paragraph (2)(B) 
                        establishing a standard of performance 
                        under section 111 of the Clean Air Act 
                        (42 U.S.C. 7411) shall be treated as 
                        the date on which the Administrator 
                        proposes such a regulation for purposes 
                        of applying the definition of a new 
                        source under section 111(a)(2) of such 
                        Act (42 U.S.C. 7411(a)(2));
                          (iii) for purposes of any emission 
                        standard or limitation applicable to 
                        electric utility steam generating 
                        units, the term ``new source'' means a 
                        stationary source for which a 
                        preconstruction permit or other 
                        preconstruction approval required under 
                        the Clean Air Act (42 U.S.C. 7401 et 
                        seq.) has been issued after the 
                        effective date of such emissions 
                        standard or limitation; and
                          (iv) for purposes of clause (iii), 
                        the date of issuance of a 
                        preconstruction permit or other 
                        preconstruction approval is deemed to 
                        be the date on which such permit or 
                        approval is issued to the applicant 
                        irrespective of any administrative or 
                        judicial review occurring after such 
                        date.
                  (C) Rule of construction.--Nothing in this 
                subsection shall be construed to restrict or 
                otherwise affect the provisions of paragraphs 
                (3)(B) and (4) of section 112(i) of the Clean 
                Air Act (42 U.S.C. 7412(i)).
          (4) Other provisions.--
                  (A) Establishment of standards achievable in 
                practice.--The regulations promulgated pursuant 
                to paragraph (2)(A) of this section shall apply 
                section 112(d)(3) of the Clean Air Act (42 
                U.S.C. 7412(d)(3)) in accordance with the 
                following:
                          (i) New sources.--With respect to new 
                        sources:
                                  (I) The Administrator shall 
                                identify the best controlled 
                                similar source for each source 
                                category or subcategory.
                                  (II) The best controlled 
                                similar source for a category 
                                or subcategory shall be the 
                                single source that is 
                                determined by the Administrator 
                                to be the best controlled, in 
                                the aggregate, for all of the 
                                hazardous air pollutants for 
                                which the Administrator intends 
                                to issue standards for such 
                                source category or subcategory, 
                                under actual operating 
                                conditions, taking into account 
                                the variability in actual 
                                source performance, source 
                                design, fuels, controls, 
                                ability to measure pollutant 
                                emissions, and operating 
                                conditions.
                          (ii) Existing sources.--With respect 
                        to existing sources:
                                  (I) The Administrator shall 
                                identify one group of sources 
                                that constitutes the best 
                                performing 12 percent of 
                                existing sources for each 
                                source category or subcategory.
                                  (II) The group constituting 
                                the best performing 12 percent 
                                of existing sources for a 
                                category or subcategory shall 
                                be the single group that is 
                                determined by the Administrator 
                                to be the best performing, in 
                                the aggregate, for all of the 
                                hazardous air pollutants for 
                                which the Administrator intends 
                                to issue standards for such 
                                source category or subcategory, 
                                under actual operating 
                                conditions, taking into account 
                                the variability in actual 
                                source performance, source 
                                design, fuels, controls, 
                                ability to measure pollutant 
                                emissions, and operating 
                                conditions.
                  (B) Regulatory alternatives.--For the 
                regulations promulgated pursuant to paragraph 
                (2) of this section, from among the range of 
                regulatory alternatives authorized under the 
                Clean Air Act (42 U.S.C. 7401 et seq.), 
                including work practice standards under section 
                112(h) of such Act (42 U.S.C. 7412(h)), the 
                Administrator shall impose the least 
                burdensome, consistent with the purposes of 
                such Act and Executive Order 13563 published at 
                76 Fed. Reg. 3821 (January 21, 2011).
  Strike subparagraph (A) of section 3(e)(1) and insert the 
following:
                  (A) The Clean Air Interstate Rule (as defined 
                in section 5(a)(4)).
  Strike subparagraph (B) of section 3(e)(1) and insert the 
following:
                  (E) ``National Ambient Air Quality Standards 
                for Ozone'', published at 73 Fed. Reg. 16436 
                (March 27, 2008).
  On page 13, line 17, in the matter before paragraph (1) in 
section 6(a), strike ``for fiscal year 2012''.
  On page 13, line 18, in section 6(a)(1), insert ``for fiscal 
year 2012,'' before ``$3,000,000''.
  Strike paragraph (2) in section 6(a) and insert the 
following:
          (2) to the Environmental Protection Agency--
                  (A) for fiscal year 2012, $1,000,000; and
                  (B) for fiscal year 2013, $500,000.
  Strike subsection (b) in section 6 and insert the following:
  (b) Offset.--Effective October 1, 2011, section 797(a) of the 
Energy Policy Act of 2005, as amended by section 2(e) of the 
Diesel Reduction Act of 2010 (Public Law 111-364), is amended--
          (1) by striking ``2012'' and inserting ``2014'';
          (2) by inserting ``$45,500,000 for fiscal year 2012, 
        $49,500,000 for fiscal year 2013, and'' after ``to 
        carry out this subtitle''.
                              ----------                              


 11. An Amendment To Be Offered by Representative Latta of Ohio or His 
                   Designee, Debatable for 10 Minutes

  After section 5, insert the following new section (and 
redesignate the subsequent section accordingly):

SEC. 6. CONSIDERATION OF FEASIBILITY AND COST IN ESTABLISHING NATIONAL 
                    AMBIENT AIR QUALITY STANDARDS.

  In establishing any national primary or secondary ambient air 
quality standard under section 109 of the Clean Air Act (42 
U.S.C. 7409), the Administrator of the Environmental Protection 
Agency shall take into consideration feasibility and cost.
                              ----------                              


    12. An Amendment To Be Offered by Representative Richardson of 
          California or His Designee, Debatable for 10 Minutes

  Page 13, line 16, strike ``(a) Authorization.--''.
  Beginning on page 13, line 23, strike subsection (b) of 
section 6.

                                  
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