[House Report 112-225]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-225

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



 
                   EPA REGULATORY RELIEF ACT OF 2011

                                _______
                                

 September 26, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Upton, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2250]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2250) 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, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Hearings.........................................................    13
Committee Consideration..........................................    14
Committee Votes..................................................    14
Committee Oversight Findings.....................................    18
Statement of General Performance, Goals and Objectives...........    18
New Budget Authority, Entitlement Authority, and Tax Expenditures    18
Earmark..........................................................    18
Committee Cost Estimate..........................................    18
Congressional Budget Office Estimate.............................    18
Federal Mandates Statement.......................................    19
Advisory Committee Statement.....................................    19
Applicability to Legislative Branch..............................    19
Section-by-Section Analysis of Legislation.......................    19
Changes in Existing Law Made by the Bill, as Reported............    21
Dissenting Views.................................................    22

                               AMENDMENT

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``EPA Regulatory Relief Act of 2011''.

SEC. 2. LEGISLATIVE STAY.

  (a) Establishment of Standards.--In place of the rules specified in 
subsection (b), and notwithstanding the date by which such rules would 
otherwise be required to be promulgated, the Administrator of the 
Environmental Protection Agency (in this Act referred to as the 
``Administrator'') shall--
          (1) propose regulations for industrial, commercial, and 
        institutional boilers and process heaters, and commercial and 
        industrial solid waste incinerator units, subject to any of the 
        rules specified in subsection (b)--
                  (A) establishing maximum achievable control 
                technology standards, performance standards, and other 
                requirements under sections 112 and 129, as applicable, 
                of the Clean Air Act (42 U.S.C. 7412, 7429); and
                  (B) identifying non-hazardous secondary materials 
                that, when used as fuels or ingredients in combustion 
                units of such boilers, process heaters, or incinerator 
                units are solid waste under the Solid Waste Disposal 
                Act (42 U.S.C. 6901 et seq.; commonly referred to as 
                the ``Resource Conservation and Recovery Act'') for 
                purposes of determining the extent to which such 
                combustion units are required to meet the emissions 
                standards under section 112 of the Clean Air Act (42 
                U.S.C. 7412) or the emission standards under section 
                129 of such Act (42 U.S.C. 7429); and
          (2) finalize the regulations on the date that is 15 months 
        after the date of the enactment of this Act.
  (b) Stay of Earlier Rules.--The following rules are of no force or 
effect, shall be treated as though such rules had never taken effect, 
and shall be replaced as described in subsection (a):
          (1) ``National Emission Standards for Hazardous Air 
        Pollutants for Major Sources: Industrial, Commercial, and 
        Institutional Boilers and Process Heaters'', published at 76 
        Fed. Reg. 15608 (March 21, 2011).
          (2) ``National Emission Standards for Hazardous Air 
        Pollutants for Area Sources: Industrial, Commercial, and 
        Institutional Boilers'', published at 76 Fed. Reg. 15554 (March 
        21, 2011).
          (3) ``Standards of Performance for New Stationary Sources and 
        Emission Guidelines for Existing Sources: Commercial and 
        Industrial Solid Waste Incineration Units'', published at 76 
        Fed. Reg. 15704 (March 21, 2011).
          (4) ``Identification of Non-Hazardous Secondary Materials 
        That Are Solid Waste'', published at 76 Fed. Reg. 15456 (March 
        21, 2011).
  (c) Inapplicability of Certain Provisions.--With respect to any 
standard required by subsection (a) to be promulgated in regulations 
under section 112 of the Clean Air Act (42 U.S.C. 7412), the provisions 
of subsections (g)(2) and (j) of such section 112 shall not apply prior 
to the effective date of the standard specified in such regulations.

SEC. 3. COMPLIANCE DATES.

  (a) Establishment of Compliance Dates.--For each regulation 
promulgated pursuant to section 2, the Administrator--
          (1) shall establish a date for compliance with standards and 
        requirements under such regulation that is, notwithstanding any 
        other provision of law, not earlier than 5 years after the 
        effective date of the regulation; and
          (2) in proposing a date for such compliance, shall take into 
        consideration--
                  (A) the costs of achieving emissions reductions;
                  (B) any non-air quality health and environmental 
                impact and energy requirements of the standards and 
                requirements;
                  (C) the feasibility of implementing the standards and 
                requirements, including the time needed to--
                          (i) obtain necessary permit approvals; and
                          (ii) procure, install, and test control 
                        equipment;
                  (D) the availability of equipment, suppliers, and 
                labor, given the requirements of the regulation and 
                other proposed or finalized regulations of the 
                Environmental Protection Agency; and
                  (E) potential net employment impacts.
  (b) New Sources.--The date on which the Administrator proposes a 
regulation pursuant to section 2(a)(1) establishing an emission 
standard under section 112 or 129 of the Clean Air Act (42 U.S.C. 7412, 
7429) 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)) 
or the definition of a new solid waste incineration unit under section 
129(g)(2) of such Act (42 U.S.C. 7429(g)(2)).
  (c) Rule of Construction.--Nothing in this Act 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)).

SEC. 4. ENERGY RECOVERY AND CONSERVATION.

  Notwithstanding any other provision of law, and to ensure the 
recovery and conservation of energy consistent with the Solid Waste 
Disposal Act (42 U.S.C. 6901 et seq.; commonly referred to as the 
``Resource Conservation and Recovery Act''), in promulgating rules 
under section 2(a) addressing the subject matter of the rules specified 
in paragraphs (3) and (4) of section 2(b), the Administrator--
          (1) shall adopt the definitions of the terms ``commercial and 
        industrial solid waste incineration unit'', ``commercial and 
        industrial waste'', and ``contained gaseous material'' in the 
        rule entitled ``Standards of Performance for New Stationary 
        Sources and Emission Guidelines for Existing Sources: 
        Commercial and Industrial Solid Waste Incineration Units'', 
        published at 65 Fed. Reg. 75338 (December 1, 2000); and
          (2) shall identify non-hazardous secondary material to be 
        solid waste only if--
                  (A) the material meets such definition of commercial 
                and industrial waste; or
                  (B) if the material is a gas, it meets such 
                definition of contained gaseous material.

SEC. 5. OTHER PROVISIONS.

  (a) Establishment of Standards Achievable in Practice.--In 
promulgating rules under section 2(a), the Administrator shall ensure 
that emissions standards for existing and new sources established under 
section 112 or 129 of the Clean Air Act (42 U.S.C. 7412, 7429), as 
applicable, can be met under actual operating conditions consistently 
and concurrently with emission standards for all other air pollutants 
regulated by the rule for the source category, taking into account 
variability in actual source performance, source design, fuels, inputs, 
controls, ability to measure the pollutant emissions, and operating 
conditions.
  (b) Regulatory Alternatives.--For each regulation promulgated 
pursuant to section 2(a), 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).

                          PURPOSE AND SUMMARY

    H.R. 2250, the ``EPA Regulatory Relief Act of 2011,'' was 
introduced by Rep. Morgan Griffith (together with Reps. 
Butterfield, Olson, Barrow, McMorris Rodgers, Ross, Scalise and 
Matheson) on June 21, 2011. The legislation gives the 
Environmental Protection Agency additional time and guidelines 
to develop achievable rules under the Clean Air Act governing 
emissions of hazardous air pollutants from industrial, 
commercial, and institutional boilers, process heaters, and 
incinerators.
    Key provisions of the bill would:
           Provide EPA with 15 months to re-propose and 
        finalize achievable rules for boilers, process heaters, 
        and incinerators;
           Extend compliance deadlines from 3 years to 
        at least 5 years to allow facilities adequate time to 
        comply with standards and install necessary equipment;
           Direct EPA, when developing the new rules, 
        to adopt definitions that allow sources to continue to 
        use alternative fuels for energy recovery; and
           Direct EPA to ensure that new rules are 
        achievable by real-world boilers, process heaters, and 
        incinerators and impose the least burdensome regulatory 
        alternatives consistent with the purposes of the Clean 
        Air Act and President Obama's Executive Order 13563 
        regarding improving regulation and regulatory review.

                  BACKGROUND AND NEED FOR LEGISLATION

Introduction

    The domestic manufacturing and industrial sectors in the 
United States currently face numerous new Environmental 
Protection Agency (EPA) rules under the Clean Air Act (CAA) and 
other statutes. Among the most significant and costly of the 
new rules are four interrelated, highly complex, and data-
intensive rules setting new standards for over 200,000 boilers, 
process heaters, and incinerators.
    The rules were developed under Sections 112 and 129 of the 
CAA which target emissions of hazardous air pollutants. Under 
these sections, EPA is required to set technology-based 
standards for sources that emit such pollutants that are 
reflective of levels of emissions limits achieved by the best 
performing sources. EPA is directed to establish ``maximum 
achievable control technology'' (MACT) and other standards to 
reduce emissions of such pollutants.
    The EPA rules addressed in H.R. 2250 were all published on 
March 21, 2011, and include the following four rules:
          (1) National Emissions Standards for Hazardous Air 
        Pollutants for Major Sources: Industrial, Commercial 
        and Institution and Process Heaters (``Major Source 
        Rule''), 76 Fed. Reg. 15608 (March 21, 2011), 
        promulgated under Section 112 of the Clean Air Act;
          (2) National Emission Standards for Hazardous Air 
        Pollutants for Area Sources: Industrial Commercial and 
        Institutional Boilers (``Area Source Rule''), 76 Fed. 
        Reg. 15554 (March 21, 2011), promulgated under Section 
        112 of the Clean Air Act;
          (3) Standards of Performance and Emissions Guidelines 
        for Existing Sources: Commercial and Industrial Solid 
        Waste Incineration Units (``CISWI Rule''), 76 Fed. Reg. 
        15704 (March 21, 2011), promulgated under Section 129 
        of the Clean Air Act; and,
          (4) Identification of Non-Hazardous Secondary 
        Materials That Are Solid Waste (``NHSM Rule''), 76 Fed. 
        Reg. 15456 (March 21, 2011), promulgated under Sections 
        2002(a)(1) and 1004(27) of the Resource Conservation 
        and Recovery Act.
    Collectively, these four rules often are referred to as the 
``Boiler MACT Rules.'' The Major Source Rule applies to an 
estimated 13,800 boilers located at manufacturing and 
industrial facilities, as well as large commercial and 
institutional sites, including large universities and health 
care facilities. The Area Source Rule applies to an estimated 
187,000 smaller boilers located at tens of thousands of 
industrial, institutional, and commercial sites, including, 
colleges and universities, hospitals, hotels, commercial 
buildings, and municipal and federal facilities. The CISWI Rule 
currently applies to an estimated 88 incinerators. The NHSM 
Rule defines non-hazardous secondary materials as fuel or 
waste, which determines whether an emissions source will be 
regulated under Section 112 or Section 129 of the Clean Air 
Act.
    There has been widespread concern in the regulated 
community about the unprecedented costs and feasibility for 
many facilities of implementing these rules as currently 
written, and about potential job losses and harm to the 
economy. The EPA Regulatory Relief Act of 2011 is designed to 
give EPA the time and parameters it needs to develop revised 
standards for these sources that will protect public health and 
the environment without undue threat to jobs and our economy.

Potential economic and job impacts

    EPA's rules impose significant new compliance costs and put 
tens of thousands of jobs at risk. While EPA estimates the 
capital expenditures associated with these rules to be $5.8 
billion, the regulated community has projected that the capital 
costs for the final Major Source Rule alone may exceed $14 
billion, plus annual operating and maintenance costs, and put 
224,000 jobs at risk. The forest products sector has estimated 
that the cost of the rules to their industry alone could range 
from $5 to $7 billion, and that 36 mills and more than 20,000 
pulp and paper industry jobs, representing 18% of the current 
workforce, may be put at risk. That estimate rises to more than 
87,000 jobs when supplier and downstream industries are 
included.
    The rules have particularly severe potential impacts in the 
current economic climate. For example, at an April 15, 2011, 
hearing before the Subcommittee on Energy and Power, Dirk 
Krouskop, Vice President, Safety, Health and Environment of 
MeadWestvaco Corporation, testified: ``Since many wood and 
paper mills are located in rural areas where these high-paying 
jobs cannot be replaced, the effect of these job losses on 
local rural communities can be especially devastating. The 
closure of a mill in a small town has an enormous ripple effect 
when the mill is the largest employer and a major contributor 
to local taxes and community civic programs.''
    The compliance burdens and substantial costs of the rules 
go well beyond major industrial facilities. For example, on 
April 15, 2011, the Subcommittee on Energy and Power received 
testimony from Paul Kempf, Director of Utilities at the 
University of Notre Dame. Mr. Kempf stated that EPA's original 
Major Source Rule for boilers issued in 2004 cost Notre Dame 
$20 million before the rule was vacated by the courts. He 
further stated ``[n]ow, nearly four years later, we are faced 
with a revised rule that is patently different from the 
original rule and one that presents uncertain compliance 
capabilities for our investment.'' He anticipates high 
compliance costs for these new rules and noted that ``these 
added costs of compliance are borne by our students and their 
families.'' Other non-industrial boiler owning entities will 
also face similar substantial compliance costs, and will likely 
have to pass at least some of those costs onto consumers in the 
form of higher tuition, hospital bills, or rent.

The need for a legislative stay and more compliance time

    EPA received more than 4,800 comments on the Boiler MACT 
Rules. In December 2010, EPA requested 15 additional months 
from the court to re-propose three of the four rules. That 
request, however, was denied in January 2011, and EPA was given 
only 30 days to finalize the rules. On the same day EPA 
announced the final rules, it also took the unusual step of 
announcing plans to reconsider certain aspects of the rules, in 
part because the public had not had sufficient time to comment. 
Many parties have asked EPA to reconsider other aspects of the 
rules.
    All of the rules been challenged before the Agency and in 
the Federal courts. Although EPA has initiated reconsideration 
of three of the rules (the Major Source, Area Source, and CISWI 
rules), and issued a limited stay of the effective date for two 
of the rules (the Major Source and CISWI rules), there 
continues to be significant regulatory uncertainty. This is 
because the outcome of EPA's reconsideration process is 
unknown, including whether EPA's stays of the two rules will be 
upheld, as they themselves have been challenged in Federal 
court.
    Legislation staying the rules is needed to prevent 
thousands of businesses and institutions located across the 
United States from having to make major and potentially 
unnecessary capital expenditures to comply before they know 
what the rules ultimately will require. A legislative stay for 
a sufficient period of time, moreover, is essential to ensure 
EPA has adequate time to address all of the complex technical 
issues that have been raised, obtain and fully analyze relevant 
data, and develop workable rules.
    An extension of the current compliance periods is also 
needed for implementing the final rules. Given their technical 
complexity, the billions of dollars in compliance costs, and 
the current economic climate, extending the compliance periods 
will help to ensure that U.S. businesses and institutions can 
integrate the complex compliance requirements, consistent with 
capital planning cycles and the availability of qualified 
vendors and of high-quality control equipment. Extending the 
compliance periods is also needed given the many other major 
regulations taking effect over the next few years.
    Numerous witnesses before the Committee have addressed the 
need for a legislative stay of the rules and an extension of 
the compliance periods. On September 8, 2011, the Subcommittee 
on Energy and Power received testimony from James A. Rubright, 
Chief Executive Officer of Rock-Tenn Company. He testified that 
``Congress should stay the rules for 15 months so EPA can get 
them right, reset the date for defining new sources, allow 
facilities more time to comply, clarify that renewable and 
recyclable materials are traditional fuels, and ensure the 
rules are achievable and less burdensome.''
    With respect to the compliance periods, on April 15, 2011, 
Dirk Krouskop of MeadWestvaco testified to the Subcommittee on 
Energy and Power that ``[t]he three years provided in the rule 
to comply is insufficient given the complexities of the rules'' 
and that ``[f]acilities should be given several more years to 
comply to account for capital planning cycles and allow a 
smooth implementation of the new Boiler MACT requirements.''
    Similarly, Todd Elliott or the Celanese Corporation 
testified on September 8, 2011, that ``[r]egardless of what 
option we choose, we cannot achieve compliance within three 
years. Extending the Boiler MACT compliance deadline to five 
years as proposed in H.R. 2250 would help ensure that Celanese 
and the manufacturing sector has adequate time to meet the new 
air quality standards without forced facility shutdowns or 
inadequate resources to ensure compliance.''

The need for achievable regulations

    In addition to the need for adequate time for issuance and 
compliance with the Boiler MACT Rules, there is a pressing need 
for ensuring that these rules are achievable in practice. The 
regulated community has not opposed regulation, but rather 
advocated for achievable and affordable rules. Substantive 
concerns with the Boiler MACT rules have focused on the need 
for standards that are achievable by real-world boilers 
consistently for all regulated pollutants across the full range 
of operating conditions, as required by the Clean Air Act.
    Many stakeholders have specifically expressed concern about 
EPA's practice of setting standards following a ``pollutant-by-
pollutant'' approach. At the September 8, 2011, hearing, Dr. 
Paul Gilman, Chief Sustainability Officer for Covanta Energy, 
testified before the Subcommittee on Energy and Power that 
under EPA's approach ``[e]mission standards for each pollutant 
were set by finding the lowest emissions from all the different 
units in a category, not the best overall units. This 
`pollutant-by-pollutant' approach rather than `plant-by-plant' 
is analogous to asking the decathlon champion at the Olympics 
to be able to win not only the overall decathlon, but all of 
the 10 gold individual events as well. People don't work that 
way and neither do machines.''
    EPA itself has indicated that the Clean Air Act can be 
interpreted to support a ``plant-by-plant'' or source-based 
approach. In the Major Source Boiler Rule, 76 Fed. Reg. 15621 
(March 21, 2011), EPA expressly stated that Section 112(d)(3) 
of the Clean Air Act is ``ambiguous as to whether the MACT 
floor is to be based on the performance of an entire source or 
on the performance achieved in controlling particular 
[hazardous air pollutants].'' Nevertheless, EPA followed a 
``pollutant-by-pollutant'' approach in the Boiler MACT Rules 
which has led to unachievable standards.
    This approach has led to situations in which even best 
performing units do not meet the standards set by the Agency. 
At the September 8, 2011, hearing before the Subcommittee on 
Energy and Power, Todd Elliott of the Celanese Corporation 
noted that ``some of our boilers at the Narrows, Virginia 
facility were identified by the Environmental Protection Agency 
as top-performing units and were used to set the proposed 
regulatory standards for hydrochloric acid and mercury 
emissions. Not even these top-performing units, however, will 
meet the emissions standards for both mercury and hydrochloric 
acid simultaneously without installing costly emission 
controls.'' Congress did not intend this arbitrary outcome. 
Congressional intent was that best performers must actually be 
controlling their emissions and that their techniques must be 
capable of being reproduced by others in the source category.
    There are also major concerns that the rules do not address 
operational realities faced by facilities. For example, Mr. 
Elliott also testified that ``[o]ur industry is often required 
to meet production demands during periods of natural gas supply 
shortages that are primarily the result of limited regional 
pipeline capacity.'' He stated that ``[t]he current Boiler MACT 
and Area Source rules prevent industry from combusting 
alternate fuels during curtailment periods except on the rare 
occasions when the supply of natural gas is completely cut off 
for reasons beyond the control of the facility. By making it 
cost prohibitive to burn alternative fuels, the current rule 
would force industry either to pay excessive prices for natural 
gas or curtail production.'' He urged ``the modification of 
curtailment provisions in the Boiler MACT and Area Source rules 
to define curtailment as a period during which the use of 
natural gas at an affected facility is halted, restricted, or 
penalized for reasons beyond the control of the facility.''
    There are also significant concerns associated with the 
NHSM Rule, which EPA has not stayed. In that rule, EPA has 
established an approach that will redefine many materials with 
energy value and now used as fuel to be ``solid waste'' under 
the Resource Conservation and Recovery Act. Accordingly, 
boilers that burn those materials will be redefined as 
incinerators and will be subject to the more rigid requirements 
under Section 129 rather than Section 112 of the Clean Air Act. 
As a result of the changes in the definition of ``solid 
waste,'' many businesses will discontinue the good practice of 
recovering energy from these materials and the materials will 
be treated as waste and landfilled--a bad result for the 
environment.
    On September 8, 2011, Dr. Gilman of Covanta Energy 
specifically testified before the Subcommittee on Energy and 
Power about the potential for these rules to be environmentally 
counterproductive by discouraging the use of waste materials or 
biomass to fuel boilers. Currently, Covanta uses materials like 
construction and demolition (C&D) debris and tree stumps from 
old orchards, but the EPA's definitional change would make this 
practice cost-prohibitive. The outcome, according to Dr. 
Gilman, is that instead of supplementing fossil fuels as an 
energy source for boilers, C&D will ``go to landfills where it 
will generate methane gas,'' and tree stumps ``will be left for 
farmers to burn in their open fields.''

Benefits

    While the regulated community as noted above does not 
oppose the issuance of achievable regulations, and H.R. 2250 
requires EPA to promulgate new rules to regulate hazardous air 
pollutant emissions from industrial, commercial, and 
institutional boilers, process heaters, and incinerators, the 
Committee notes that questions have been raised concerning 
EPA's projections of benefits under these rules. In particular, 
EPA does not calculate the benefits from reductions of mercury 
or other hazardous air pollutants. Rather, EPA calculates 
benefits based on the incidental reductions in outdoor 
particulate levels, called ``PM,'' a non-hazardous pollutant.
    Dr. Peter Valberg, a toxicologist and principal of 
Gradient, an environmental consulting firm, and former faculty 
member at the Harvard School of Public Health, testified to the 
Subcommittee on Energy and Power on September 8, 2011. He noted 
at the outset that, ``by every public health measure, from 
infant mortality to life expectancy, we are healthier today, 
and exposed to fewer hazards, than ever before. Our present-day 
air is much cleaner now than years ago, thanks to EPA, and our 
air quality is among the best in the world.''
    He testified that with respect to EPA's projections of 
benefits from reductions of particulate matter, ``[i]ntricate 
statistical manipulations are required to demonstrate the PM-
mortality correlations. The computer models require many 
assumptions and adjustments, and the results you get depend on 
the model you use, how you set it up, and how many different 
tests you run. You need to correct for many non-PM pollutants 
as well as non-pollution factors that may confound the PM-
mortality associations. It's not clear that all confounders 
have been taken into account, and mere associations cannot 
establish causality.''
    He also testified that exposure to outdoor particulate 
matter is very small compared to exposure resulting from normal 
everyday activities, such as cleaning, cooking, baking, frying, 
barbecuing, mowing lawns, raking leaves, or enjoying a 
fireplace. He stated that there are major questions about 
``lives saved'' by small PM reductions in the outdoor air. He 
further stated ``[m]ost importantly, neither the animal 
toxicology nor the human clinical data validate the statistical 
associations from the observational epidemiology studies.''

What the EPA Regulatory Relief Act of 2011 would do

    Under H.R. 2250, EPA would be required to promulgate new 
rules to replace the four recently published rules, and to 
extend the compliance deadlines for regulated entities from 3 
years to at least 5 years. The Committee urges EPA in 
promulgating the new rules to address all of the significant 
substantive technical issues that have been raised in the 
reconsideration proceedings, and to set reasonable compliance 
dates for businesses and institutions to install necessary 
controls and to come into compliance with the new rules.
    In promulgating the new rules, H.R. 2250 would require that 
EPA, in defining the terms ``commercial and industrial solid 
waste incineration unit,'' ``commercial and industrial solid 
waste,'' and ``contained gaseous material,'' to adopt the 
meaning of those terms set forth in a 2000 EPA rule published 
at 65 Fed. Reg. 75338 (December 1, 2000). Under these 
definitions, units designed for energy recovery are regulated 
under Section 112 of the Clean Air Act, and are excluded from 
being regulated as incinerators under Section 129.
    These definitions will ensure that the valuable energy 
content in a wide range of materials can continue to be 
recovered and will not be wasted. Congress has long supported 
innovation to safely extract the energy value from secondary 
materials, and if EPA promulgates rules that discourage the 
recapture of their energy value, as a nation we will be 
landfilling energy. This is not sound energy or environmental 
policy.
    Further, H.R. 2250 clarifies that the emissions standards 
set by the Administrator in the new rules must be achievable in 
practice. Section 5(a) specifically requires the Administrator 
to ensure that emission standards for existing and new sources 
established under Section 112 or 129 of the Clean Air Act can 
be met under actual operating conditions consistently and 
concurrently with emission standards for all other air 
pollutants regulated by the rule for the source category, 
taking into account variability in actual source performance, 
source design, fuels, inputs, controls, ability to measure the 
pollutant emissions, and operating conditions. This is intended 
to ensure that the standards set can be achieved in practice by 
facilities using available technology.
    The directive to establish standards achievable in practice 
in Section 5(a) only applies to industrial, commercial, and 
institutional boilers and process heaters, and commercial and 
industrial solid waste incinerator units covered by the 
rulemakings addressed in the legislation. The Committee urges 
EPA to ensure that future rulemakings for other source 
categories set standards that are similarly achievable in 
practice under actual operating conditions consistently and 
concurrently with emission standards for all other air 
pollutants regulated by the rules.
    Section 5(a) clarifies Congress' intent that the standards 
EPA sets be based on emissions limits that are currently 
achieved in practice. In setting standards, EPA must utilize 
facility data to establish standards based on the criteria and 
methodology in this section of the bill. EPA should review all 
available data and, to the maximum extent practicable, utilize 
it to develop the standards in the manner required by the 
legislation. In addition to stack test and fuel sampling data 
that EPA relied on to develop the boiler and incinerator rules, 
facilities that will be regulated by these rules routinely 
submit air emissions inventory and toxic release inventory data 
as required by EPA and the states. EPA has broad technical 
expertise and experience analyzing the full range of facility 
data. To the extent that EPA determines that the existing data 
should be supplemented in order to develop the standards as 
required by the bill, EPA may need to seek limited additional 
data from regulated sources, such as data to understand boiler 
variability.
    Finally, H.R. 2250 also reiterates that in promulgating the 
new rules, the Administrator should impose the least burdensome 
regulatory alternatives, consistent with the purposes of the 
Clean Air Act and President Obama's Executive Order 13563 
(published January 21, 2011). That order states that an agency 
should ``tailor its regulations to impose the least burden on 
society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent 
practicable, the costs of cumulative regulations.''
    Although the executive order recognized the need for 
regulations, it emphasized that regulatory agencies must do so 
``while promoting economic growth, innovation, competitiveness, 
and job creation.'' This provision of H.R. 2250 is intended to 
ensure that where alternative measures authorized by the Clean 
Air Act will achieve the goals of the Act, that the 
Administrator chooses the least burdensome of those 
alternatives consistent with the objectives of the Act.

Supporters of the legislation

    The following entities have expressed support for H.R. 
2250:
A/C Power Colver, AbitibiBowater, Alabama Forestry Association, 
Alabama Pulp & Paper Council, Allegheny Hardwood Utilization 
Group, Inc., American Architectural Manufacturers Association, 
American Chemistry Council, American Coatings Association, 
American Coke & Coal Chemicals Institute, American Composites 
Manufacturers Association, American Fiber Manufacturers 
Association, Americans For Prosperity, American Forest & Paper 
Association, American Foundry Society, American Frozen Food 
Institute, American Home Furnishings Alliance, American Loggers 
Council, American Municipal Power, American Petroleum 
Institute, American Sugar Cane League, American Wood Council, 
Amerities Holdings LLC, Anthony Liftgates, Inc., APA--The 
Engineered Wood Association, Appleton Papers Inc., APUs by Rex, 
LLC, Archer Daniels Midland Company, ARIPPA, Arkansas Forestry 
Association, Arkansas State Chamber of Commerce, Associated 
Industries of Arkansas, Inc., Associated Industries of Vermont, 
Association of American Railroads, Association of Independent 
Corrugated Converters, Atlantic Wood Industries, Inc., Barge 
Forest Products Co., Beet Sugar Development Foundation, Belden 
Brick Company, Belimed, Inc., Bennett Lumber Company, Berco, 
Inc., Biomass One, LP, Biomass Power Association, Blue Bell 
Creameries, Blue Ridge Paper Products, Boise Cascade, LLC, 
Boise Inc., Brick Industry Association, Business Council of 
Alabama, Business Roundtable, Cahaba Timber Co., California 
Forestry Association, California League of Food Processors, 
California Metals Coalition, Canyon Creek Logging, Carolina 
Cotton Works, Inc., Cement Kiln Recycling Coalition, Chaney 
Lumber Co., Inc., Charles Ingram Lumber Co., Coast Wood 
Preserving, Inc., Coastal Plywood Company, Collins Pine 
Company, Colorado Association of Commerce & Industry, Composite 
Panel Association, Construction Materials Recycling 
Association, Corn Refiners Association, Council of Industrial 
Boiler Owners, Cresote Council, Decker Energy International, 
Inc., Dietz & Watson, Inc., Domtar Corporation, Douglas County 
Forest Products, Eastman Chemical Company, Eaton Corporation, 
Electric Mills Wood Preserving, Empire State Forest Products 
Association, Evergreen Packaging, Fibrek, Finch Paper LLC, 
Flakeboard America, Flambeau River Papers, Florida Forestry 
Association, Florida Pulp and Paper Association, Florida State 
Council, Florida Sugar Industry, Flower City Tissue Mills Co., 
Inc., FMC Corporation, Forest Landowners Association, Forest 
Products Industry National Labor Management Committee, Forest 
Resources Association Inc., Forging Industry Association, 
Fowler Post Co, Inc., Fox River Fiber Company, Genesee Power 
Station LP, George A. Whiting Paper Company, Georgia 
Association of Manufacturers, Georgia Paper & Forest Products 
Association, Inc., Georgia-Pacific LLC, Glatfelter, Glier's 
Meats, Inc., Green Diamond Resources Company, H. W. Culp Lumber 
Co., Hardwood Federation, Hardwood Manufacturers Association, 
Hardwood Plywood and Veneer Association, Harrigan Lumber Co., 
Inc., Hawaii Forest Industry Association, Hesse and Sons Dairy 
LLC, Hood Industries, Inc., Idaho Forest Group, INDA, 
Association of the Nonwoven Fabrics Industry, Indiana Hardwood 
Lumbermen's Association, Industrial Energy Consumers of 
America, Industrial Fastener Institute, Industrial Minerals 
Association--North America, Innovative Pine Technology Inc., 
Interfor, International Brotherhood of Electrical Workers, 
International Falls Chamber of Commerce (MN), International 
Paper, J.T. Fennell Company, Inc., JELD-WEN, Inc., Jordan 
Lumber & Supply, Inc., Kansas City Power & Light, Kapstone 
Paper and Packaging Corporation, Kentucky Forest Industries 
Association, Kercher Industries, Inc., Kitchen Cabinet 
Manufacturers Association, Koppers Inc., Lake States Lumber 
Association, Land O Lakes Wood Preserving Co., Langdale Forest 
Products Co., L'anse Warden Electric Company, LLC, Leggett & 
Platt, Incorporated, Longview Fibre Paper and Packaging, Inc., 
Louis Dreyfus Agricultural Industries, Louisiana Farm Bureau 
Federation, Louisiana Pacific Corporation, Louisiana Pulp and 
Paper Association, LyondellBasell Industries, Maine Pulp & 
Paper Association, Manufacture Alabama, Manufacturers and 
Chemical Industry Council of North Carolina, Maple Flooring 
Manufacturers Association, Masco Corporation, Maxi-Seal Harness 
Systems, Inc., McShan Lumber Company, Inc., MeadWestvaco 
Corporation, Melrose Timber Company, Inc., Metal Treating 
Institute, Metals Service Center Institute, Michigan Biomass, 
Michigan Forest Products Council, Minnesota Chamber of 
Commerce, Minnesota Forest Industries, Mission Plastics North, 
Mission Plastics of Arkansas, Mississippi Manufacturers 
Association, Missouri Forest Products Association, Motor & 
Equipment Manufacturers Association, Mount Vernon Mills, Inc., 
Muscatine Foods Corporation, National Association for Surface 
Finishing, National Association of Manufacturers, National 
Association of Trailer Manufacturers, National Concrete Masonry 
Association, National Construction Alliance II, National 
Council of Farmer Cooperatives, National Council of Textile 
Organizations, National Federation of Independent Business, 
National Lumber and Building Material Dealers Association, 
National Oilseed Processors Association, National Solid Wastes 
Management Association, National Spinning Company, NC 
Association of Professional Loggers, Inc., Neenah Paper Inc., 
Nevada Manufacturers Association, New Hampshire Timberland 
Owners Association, Nippon Paper Industries USA Co., Nisus 
Corporation, NORA, An Association of Responsible Recyclers 
(formerly the National Oil Recyclers Association), North 
American Die Casting Association, North American Wholesale 
Lumber Association, North Carolina Chamber of Commerce, North 
Carolina Forestry Association, Northeast Regional Council of 
Millwrights, Northwest Pulp and Paper Association, Ohio Chamber 
of Commerce, Ohio Forestry Association, Ohio Manufacturers' 
Association, Ohio Municipal Electric Association, Ohio Willow 
Wood Company, OMNOVA Solutions, Inc., Oregon Forest Industries 
Council, Owens-Illinois, Inc., Pacific Wood Laminates, 
Packaging Corporation of America, Page & Hill Forest Products 
Inc., Partnership for Affordable Clean Energy, Pellet Fuels 
Institute, Pennsylvania Business Council, Pennsylvania Chamber 
of Business and Industry, Pennsylvania Forest Products 
Association, Pennsylvania Manufacturers' Association, Peterson 
Mfg. Co., Pile Driving Contractors Association, Piney Creek LP, 
Plum Creek, Port Townsend Paper Corporation, Portland Cement 
Association, Possum Tree Farm, Potomac Supply Corporation, PPG 
Industries, Precision Machined Products Association, Precision 
Pulley & Idler, Prince Manufacturing Corporation, Railway Tie 
Association, Rex Lumber, LLC, Rhodia, Inc., River Trading 
Company, Rock-Tenn Company, Rosboro LLC, Roseburg Forest 
Products Company, ROW, INC., Roy ``O'' Martin Lumber Company, 
LLC, Rubber Manufacturers Association, Rudd Company, Inc., S.I. 
Storey Lumber Co., Inc., Sage Automotive Interiors, Sappi Fine 
Paper North America, Sauder Woodworking Co., Scotch Plywood 
Company, Inc., Seymour Manufacturing Co., Inc., SierraPine 
Limited, Smith Street Mill, Society of Chemical Manufacturers 
and Affiliates, South Carolina Forestry Association, South 
Carolina Manufacturers Alliance, South Carolina Pulp and Paper 
Association (SCPPA), South Carolina Timber Producers 
Association, Southeast Wood, Southeastern Lumber Manufacturers 
Association, Southern Appalachian Multiple-Use Council, 
Southern Forest Products Association, Southern Pressure 
Treaters' Association, SP Newsprint Co., States Industries, 
LLC, Steel Manufacturers Association, Stella-Jones Corporation, 
Streator Dependable Mfg. Co., Sunbury Textile Mills, Inc., 
Tegrant Corporation, Ten-Tec, Inc., Tennessee Chamber of 
Commerce & Industry, Tennessee Forestry Association, Tennessee 
Paper Council, Texas Association of Manufacturers, Texas Forest 
Industries Council, Texas Forestry Association, Textile Rental 
Services Association, The Association for Hose & Accessories 
Distribution (NAHAD), The Business Council of New York State, 
Inc., The Carpet and Rug Institute, The Dow Chemical Company, 
The International Association of Machinists and Aerospace 
Workers, The Oeser Company, The United Brotherhood of 
Carpenters and Joiners of America, Thilmany Papers, Thomasson 
Company, Thompson Industries, Inc., Timber Products Company, 
TMA, Tolleson Lumber Company, Tradewinds International Inc., 
Treated Wood Council, Tri-State Generation and Transmission 
Association, TrueGuard--wood preservation, U.S. Beet Sugar 
Association, U.S. Chamber of Commerce, Uniboard USA LLC, Unifi 
Manufacturing Inc., USA Rice Federation, Vector Tool and 
Engineering, Verso Paper Corp., Virginia Chamber of Commerce, 
Virginia Forest Products Association, Virginia Forestry 
Association, Virginia Manufacturers Association, Washington 
Contract Loggers Association, Inc., Water Treatment Services 
Inc., Wausau Paper, Webb Consultants, Inc., WEBB Furniture 
Enterprises Corp, The Westervelt Company, Weyerhaeuser Company, 
Window and Door Manufacturers Association, Wisconsin 
Manufacturers & Commerce, Wisconsin Paper Council, and Wood 
Machinery Manufacturers of America.

                                HEARINGS

    The Subcommittee on Energy and Power on April 15, 2011, 
held a hearing on ``The American Energy Initiative: Recent EPA 
Rulemakings Relating to Boilers, Cement Manufacturing Plants 
and Utilities,'' and received testimony from:
           Tom Fanning, Chairman, President and Chief 
        Executive Officer, Southern Company;
           Anthony F. Earley, Jr., Executive Chairman, 
        DTE Energy;
           Aris Papadopolous, President and Chief 
        Executive Officer, Titan America LLC;
           Dirk Krouskop, Vice President, Safety, 
        Health and Environment, MeadWestvaco Corporation;
           Paul Kempf, Director of Utilities, 
        University of Notre Dame;
           Michael J. Bradley, Executive Director, The 
        Clean Energy Group; and
           John Walke, Clean Air Director and Senior 
        Attorney, Natural Resources Defense Council.
    The Subcommittee on Energy and Power on September 8, 2011, 
held a legislative hearing on H.R. 2250, the ``EPA Regulatory 
Relief Act of 2011,'' and H.R. 2250, the ``Cement Sector 
Regulatory Relief Act of 2011,'' and received testimony from:
           The Honorable Gina McCarthy, Assistant 
        Administrator, Office of Air and Radiation, U.S. 
        Environmental Protection Agency;
           James A. Rubright, Chairman and Chief 
        Executive Officer, Rock-Tenn Company;
           Paul Gilman, Ph.D., Chief Sustainability 
        Officer and Senior Vice President, Covanta Energy 
        Corporation;
           Todd Elliott, General Manager, Acetate, 
        Celanese Corporation;
           Daniel M. Harrington, President and CEO, 
        Lehigh Hanson, Inc.;
           Peter A. Valberg, Ph.D., Principal, 
        Environmental Health, Gradient Corporation;
           John Walke, Clean Air Director and Senior 
        Attorney, Natural Resources Defense Council; and
           Eric Schaeffer, Executive Director, 
        Environmental Integrity Project.

                        COMMITTEE CONSIDERATION

    H.R. 2250 was introduced on June 21, 2011, by 
Representatives Morgan Griffith (together with Reps. 
Butterfield, Olson, Barrow, McMorris Rodgers, Ross, Scalise and 
Matheson).
    On September 8, 2011, the Subcommittee on Energy and Power 
held a legislative hearing on H.R. 2250.
    On September 13, 2011, the Subcommittee on Energy and Power 
reported the bill favorably to the full committee by voice 
vote. During the markup, two amendments were offered and 
defeated, by voice vote.
    On September 20 and 21, 2011, the Committee on Energy and 
Commerce met in open markup session. During the markup, three 
amendments were offered and one amendment was adopted by voice 
vote.
    On September 21, 2011, the Committee on Energy and Commerce 
met in open markup session and ordered H.R. 2250 reported to 
the House, as amended, by a roll call vote of 36 ayes and 14 
nays.

                            COMMITTEE VOTES

    Clause 3(b) of rule XII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Upton to order H.R. 2250, reported to the House, 
as amended, was agreed to by a record vote of 36 yeas and 14 
nays. The following reflects the recorded votes taken during 
the Committee consideration, including the names of those 
Members voting for and against.


                      COMMITTEE OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee made findings that are 
reflected in this report.

         STATEMENT OF GENERAL PERFORMANCE, GOALS AND OBJECTIVES

    H.R. 2250 provides additional time and guidelines for the 
Administrator of the Environmental Protection Agency to issue 
achievable standards for industrial, commercial and 
institutional boilers, process heaters, and incinerators.

    NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY AND TAX EXPENDITURES

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
2250, the EPA Regulatory Relief Act of 2011, would result in no 
new or increased budget authority, entitlement authority, or 
tax expenditures or revenues.

                                EARMARK

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, 
the committee finds that H.R. 2250, the EPA Regulatory Relief 
Act of 2011, contains no earmarks, limited tax benefits, or 
limited tariff benefits.

                        COMMITTEE COST ESTIMATE

    The Committee adopts as its own the cost estimate provided 
by the Congressional Budget Office. Pursuant to clause 3(c)(3) 
of rule XIII of the Rules of the House of Representatives, the 
following is the cost estimate provided by the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

H.R. 2250--EPA Regulatory Relief Act of 2011

    Summary: In March 2011, the Environmental Protection Agency 
(EPA) completed four final rules related to emissions standards 
for industrial boilers, process heaters, and incinerators. H.R. 
2250 would prevent those rules from being implemented and 
require EPA to propose new regulations. EPA would have 15 
months from the bill's enactment to finalize the new 
regulations; entities affected by those regulations would have 
at least five years to comply with the new rules. CBO estimates 
that enacting this legislation would have a net cost of $1 
million over the 2012-2016 period, subject to the availability 
of appropriated funds. Enacting H.R. 2250 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    H.R. 2250 contains no new intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA).
    Estimated cost to the Federal Government: CBO estimates 
that implementing H.R. 2250 would have a net cost of $1 million 
over the next five years. The costs of this legislation fall 
within budget function 300 (natural resources and environment).
    Basis of estimate: For this estimate, CBO assumes that H.R. 
2250 will be enacted by the end of 2011 and that the necessary 
amounts will be appropriated.
    According to EPA, the agency spent about $2 million over 
the 2007-2010 period to develop and finalize the emissions 
standards addressed by H.R. 2250. Furthermore, CBO estimates 
that it would cost EPA about $2 million over the 2011-2016 
period to implement and enforce those rules under current law. 
While enacting this bill would preclude EPA from spending 
resources on those activities, this legislation would require 
the agency to spend resources on proposing and finalizing new 
regulations.
    The new regulations would be based on emissions limits that 
can be achieved in practice by facilities using available 
technology. At this time, EPA is uncertain how it would 
interpret this requirement for the new regulations and cannot 
say what the cost to develop the new rules would be. For this 
estimate, CBO assumes that rulemaking costs for the new rules 
would be similar to those for the prior effort ($2 million) to 
issue regulations. CBO estimates that implementing and 
enforcing the new regulations required under H.R. 2250 would 
have an additional cost of about $1 million over the 2012-2016 
period.
    On balance, CBO estimates that implementing this 
legislation would have a net cost $1 million over the next five 
years.
    Pay-As-You-Go considerations: None.
    Intergovernmental and private-sector impact: H.R. 2250 
contains no new intergovernmental or private-sector mandates as 
defined in UMRA.
    Estimate prepared by: Federal costs: Susanne S. Mehlman; 
Impact on state, local, and tribal governments: Ryan Miller; 
Impact on the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               SECTION-BY-SECTION ANALYSIS OF LEGISLATION

Section 1--Short title

    Section 1 provides the short title of ``EPA Regulatory 
Relief Act of 2011.''

Section 2--Legislative stay

    Sections 2(a) and 2(b) direct the Administrator of the EPA 
to promulgate new rules to replace four recently published, 
interrelated EPA rules setting MACT and other performance 
standards for industrial, commercial and institutional boilers 
and process heaters, and commercial and industrial solid waste 
incineration units. These rules were issued under Sections 112 
and 129 of the Clean Air Act, and Sections 2002(a)(1) and 
1004(27) of RCRA.
    Section 2(a) directs the Administrator to finalize the new 
rules 15 months from the date of enactment of the Act.
    Section 2(c) clarifies that the provisions of Section 
112(j) and 112(g)(2), which direct the Administrator or State 
permitting authorities to establish on a case-by-case basis 
emission limits in certain circumstances where the 
Administrator has failed to promulgate a MACT standard, shall 
not apply prior to the effective date of the new standards.

Section 3--Compliance dates

    Section 3(a) extends the deadline for compliance with the 
new rules from 3 years to at least 5 years from the date of 
enactment of the Act to allow sufficient time for facilities to 
install equipment and comply with the new standards.
    Section 3(b) clarifies that for each of the new rules 
promulgated pursuant to the Act, the date on which the 
Administrator proposes the rule shall be treated as the 
proposal date for purposes of the definition of a ``new 
source'' under Section 112(a)(4), and of a ``new solid waste 
incineration unit'' under Section 129(g)(2) of the CAA.
    Section 3(c) clarifies that nothing in the legislation 
should be construed to restrict the Administrator or a State 
permitting authority from granting an extension under CAA 
Section 112(i)(3)(B) allowing an existing source up to 1 
additional year to comply if necessary for the installation of 
controls, or to restrict the President from granting limited 
national security-related exemptions under CAA Section 
112(i)(4).

Section 4--Energy recovery and conservation

    Section 4 provides that in defining the terms ``commercial 
and industrial solid waste incineration unit,'' ``commercial 
and industrial waste,'' and ``contained gaseous material,'' the 
Administrator should adopt the meaning of those terms set forth 
in an EPA 2000 rule. These definitions provide that units 
designed for energy recovery should be regulated under Section 
112 of the CAA, and should not be classified as incinerators 
and regulated under CAA Section 129. This section is intended 
to ensure the continued use of a wide range of alternative 
fuels and encourage energy recovery.

Section 5--Other provisions

    Section 5(a) clarifies that the emissions standards set by 
the Administrator in the new rules must be achievable in 
practice. The section directs the Administrator to ensure that 
the emissions standards can be met under actual operating 
conditions consistently and concurrently for all pollutants 
regulated by the new rules. This section is intended to ensure 
that the standards are based on emission limits achieved in 
practice by real-world boilers, process heaters and 
incinerators.
    Section 5(b) clarifies that in promulgating the new rules, 
the Administrator should impose the least burdensome regulatory 
alternatives, consistent with the purposes of the CAA and 
Executive Order 13563 (published January 21, 2011).

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    The bill does not change existing law.

                            DISSENTING VIEWS

                       I. PURPOSE OF LEGISLATION

    This bill's supporters have claimed that this bill simply 
gives EPA more time to modify and finalize rules for 
industrial, commercial, and institutional boilers and process 
heaters and commercial and industrial solid waste incinerators. 
The Committee report states that the purpose of the bill is 
``to provide additional time for the Administrator of the 
Environmental Protection Agency to issue achievable standards'' 
for boilers and incinerators. Similarly, Congressman Pete Olson 
claimed that this bill ``would give EPA the time that they 
requested to correct the seriously flawed boiler MACT 
rules.''\1\
---------------------------------------------------------------------------
    \1\Statement of Congressman Pete Olson, Subcommittee on Energy and 
Power, Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act 
of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 
112th Cong. (Sept. 8, 2011).
---------------------------------------------------------------------------
    This is misleading. First, these standards are long 
overdue. The Clean Air Act amendments of 1990 identified toxic 
air pollution as a problem and set a statutory deadline of 2000 
for setting emissions limits for polluting facilities.
    Second, as explained in more detail below, section 2 of 
bill effectively nullifies EPA's boiler rules and prohibits EPA 
from finalizing new regulations for 15 months. In addition to 
this up-front delay, section 3 of the bill bars EPA from 
requiring facilities to reduce pollution to comply with any 
revised standards for at least five years once they go into 
effect. EPA does not want this delay. Gina McCarthy, Assistant 
Administrator for Air and Radiation at the U.S. Environmental 
Protection Agency, testified that this bill is not consistent 
with the extra time EPA had requested from the courts in 2010 
to finish the boiler rules. She stated, ``We did not ask for 
this. We do not need this.''\2\ In fact, Ms. McCarthy concluded 
that the bill's authors ``have no mandatory timeline in mind 
for when these public health protections should be achieved.''
---------------------------------------------------------------------------
    \2\Testimony of Gina McCarthy, Assistant Administrator for Air and 
Radiation, U.S. Environmental Protection Agency, before the 
Subcommittee on Energy and Power, Legislative Hearing on H.R. 2250, the 
EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector 
Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011).
---------------------------------------------------------------------------
    Chairman Whitfield also claimed that this bill requires EPA 
to implement new emissions controls but replaces ``unrealistic 
targets and timetables with achievable ones.''\3\ Full 
Committee Chairman Fred Upton reiterated this argument, stating 
that the bill simply requires EPA to promulgate regulations 
that ``reduce emissions using reasonable and achievable targets 
and\4\ timetables.''\5\ These statements suggest that EPA's 
boiler rules set standards that are not achievable. But the 
Clean Air Act requires EPA to set specific emission limits for 
hazardous air pollutants based on pollution reductions that 
similar facilities already are achieving in the real world, not 
reductions achievable only in a laboratory or in computer 
models.\6\ For existing sources, the emission standard must be 
at least as stringent as the average emissions achieved by the 
best-performing 12% of sources in that source category--not the 
top 1% or 2%, but the top 12%.\7\ For new sources, the emission 
standard must be at least as stringent as the emissions levels 
achieved by the best-controlled similar source.\8\ These 
minimum emissions levels are known as the Maximum Achievable 
Control Technology (MACT) floor.
---------------------------------------------------------------------------
    \3\Id.
    \4\Statement of Chairman Ed Whitfield, Subcommittee on Energy and 
Power, Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act 
of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 
112th Cong. (Sept. 8, 2011).
    \5\Statement of Chairman Fred Upton, Subcommittee on Energy and 
Power, Markup of H.R. 2681, the Cement Sector Regulatory Relief Act of 
2011 and H.R. 2250, the EPA Regulatory Relief Act of 2011, 112th Cong. 
(Sept. 13, 2011).
    \6\CAA Sec. 112(d).
    \7\CAA Sec. 112(d)(3).
    \8\CAA Sec. 112(d)(3).
---------------------------------------------------------------------------
    The bill's supporters also claim that this bill will help 
create regulatory certainty. Congressman Pete Olson, for 
example, stated that the legislation ``would provide regulatory 
certainty to businesses that are trying to create American 
jobs.''\9\ James A. Rubright, testifying on behalf of the 
American Forest and Paper Association, stated that he supports 
the bill because it offers ``additional time and 
certainty.''\10\
---------------------------------------------------------------------------
    \9\Statement of Congressman Pete Olson, Subcommittee on Energy and 
Power, Markup of H.R. 2681, the Cement Sector Regulatory Relief Act of 
2011 and H.R. 2250, the EPA Regulatory Relief Act of 2011, 112th Cong. 
(Sept. 13, 2011).
    \10\Testimony of James A. Rubright before the Subcommittee on 
Energy and Power, Legislative Hearing on H.R. 2250, the EPA Regulatory 
Relief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief 
Act of 2011, 112th Cong. (Sept. 8, 2011).
---------------------------------------------------------------------------
    In fact, the bill creates substantial new uncertainty, both 
on the timing for compliance and the degree of emission control 
required. In response to questioning from Ranking Member Rush, 
Ms. McCarthy from EPA stated that the bill ``raises significant 
uncertainty about whether or not we can move this forward and 
what standards would need to be applied.''\11\
---------------------------------------------------------------------------
    \11\Testimony of Gina McCarthy, Assistant Administrator for Air and 
Radiation, U.S. Environmental Protection Agency, before the 
Subcommittee on Energy and Power, Legislative Hearing on H.R. 2250, the 
EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector 
Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011).
---------------------------------------------------------------------------
    In particular, section 5 of the bill is ambiguous. It 
places new constraints and conditions on how EPA must set 
specific emission standards for toxic air pollution. It also 
requires EPA to select the ``least burdensome'' option when 
looking at how to cut pollution. But the bill does not explain 
what this means. Ms. McCarthy from EPA testified that this 
section could ``raise legal uncertainty'' because it is not 
clear whether or not it trumps current law.\12\ Environmental 
lawyers who have been litigating these provisions for decades 
told the Subcommittee that this section would override current 
law and exempt industrial boilers and incinerators from 
requirements to achieve maximum reductions in toxic air 
pollution.\13\ These are two distinct legal interpretations of 
the language. All that is certain is that this language will 
create new litigation to determine which interpretation 
prevails.
---------------------------------------------------------------------------
    \12\Id.
    \13\Testimony of John Walke, Senior Attorney, Natural Resources 
Defense Council, before the Subcommittee on Energy and Power, 
Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 
and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th 
Cong. (Sept. 8, 2011).
---------------------------------------------------------------------------
    In the end, this bill creates substantial uncertainty, 
ensures litigation, and goes far beyond providing EPA with 
extra time to finalize the rulemaking. This bill delays and may 
substantially weaken long overdue public health protections, 
allowing continued uncontrolled emissions of toxic air 
pollutants that cause cancer, developmental harm, and other 
serious health effects.

                  II. RULES BLOCKED BY THE LEGISLATION

    Section 112 of the Clean Air Act requires EPA to set 
technology-based standards to reduce toxic air pollutants from 
distinct source categories (e.g., power plants, boilers, and 
cement kilns). Toxic air pollutants are pollutants that are 
known or suspected to cause cancer or other serious health 
effects, such as reproductive or birth defects or neurological 
effects, or adverse environmental effects. EPA rulemakings aim 
to reduce the release of 187 hazardous air pollutants including 
mercury, cadmium, lead, benzene and dioxin.
    Mercury is a hazardous air pollutant of particular concern. 
Mercury is emitted into the air and is then deposited into 
water bodies, where it contaminates fish and other aquatic 
life. High levels of mercury in fish have triggered mercury 
advisories in water bodies around the country. Pregnant and 
nursing women, women who may become pregnant and young children 
who eat large amounts of mercury-contaminated fish are 
especially at risk because mercury damages babies' developing 
brains, harming children's ability to think and learn.
    In April 2010, EPA proposed standards to reduce toxic air 
pollutants from industrial, commercial, and institutional 
boilers and process heaters and commercial and industrial solid 
waste incinerators. EPA held three public hearings and received 
more than 4,800 comments during an extended public comment 
period. Pursuant to a court order, EPA finalized these rules on 
February 21, 2011, eleven years after the statutory deadline.
    EPA significantly modified the final rules from the 
proposals in response to the public comments. As a result, the 
final rules cut costs approximately in half.\14\ The rules 
maintain significant public health benefits, which are 
estimated at between $22 billion to $56 billion each year, as 
well as the non-monetized benefits of reductions in mercury, 
dioxins, and other toxic air pollutants.\15\ Annually, the 
final rules are estimated to avoid up to 6,600 premature 
deaths, 42,000 aggravated asthma cases and 320,000 days when 
people miss school or work.\16\ EPA also estimates that the 
rules will create a net gain of 2,200 jobs, which does not 
include the jobs created to manufacture and install equipment 
to reduce air pollution.\17\
---------------------------------------------------------------------------
    \14\U.S. Environmental Protection Agency, Fact Sheet: EPA's Final 
Air Toxics Standard, Major and Area Source Boilers and Certain 
Incinerators, Overview of Rules and Impacts (Feb. 21, 2011).
    \15\U.S. Environmental Protection Agency, Fact Sheet: Final Air 
Toxics Standards for Industrial, Commercial, and Institutional Boilers 
and Process Heaters at Major Source Facilities (Feb. 21, 2011); U.S. 
Environmental Protection Agency, Fact Sheet: Final Air Toxics Standards 
for Industrial, Commercial, and Institutional Boilers at Area Source 
Facilities (Feb. 21, 2011); U.S. Environmental Protection Agency, Fact 
Sheet: Final Amendments to New Source Performance Standards and 
Emission Guidelines for Commercial and Industrial Solid Waste 
Incineration Units (Feb. 21, 2011).
    \16\Id.
    \17\U.S. Environmental Protection Agency, Final Rules to Reduce Air 
Toxics from Boilers and Incinerators, Briefing for Congressional Staff 
(Feb. 2011).
---------------------------------------------------------------------------
    On May 16, 2011, EPA announced that it would reconsider the 
final standards for boilers and certain solid waste 
incinerators to seek additional public comment and stakeholder 
input. EPA also issued a stay to delay the effective date of 
the standards for major source boilers and commercial and 
industrial solid waste incinerators.

    III. BILL SUMMARY: H.R. 2250, EPA REGULATORY RELIEF ACT OF 2011

    This bill delays issuance and implementation of the rules 
to reduce hazardous air pollution from boilers and 
incinerators, undermines EPA's authority to require application 
of the best performing emissions control technologies, and 
could allow more facilities to incinerate waste without being 
subject to the more stringent pollution control requirements 
that apply to waste incinerators.
    Section 2 of bill effectively nullifies EPA's boiler rules, 
including the rule for area sources, which is not subject to 
EPA's regulatory stay, and directs EPA to promulgate new MACT 
standards for boilers and incinerators. As reported out of the 
Subcommittee on Energy and Power, the bill prohibited EPA from 
finalizing these regulations for at least 15 months and allowed 
for an indefinite further delay. During the Full Committee 
markup, Congressman Morgan Griffith offered an amendment to 
clarify that EPA must finalize the regulations on the date that 
is 15 months after the date of enactment. This language appears 
to preclude EPA from acting earlier or later than the date that 
is 15 months after the date of enactment. This amendment passed 
on voice vote.
    In addition to this up-front delay of 15 months, section 3 
of the bill bars EPA from requiring facilities to reduce 
pollution to comply with any revised standards for at least 
five years, and potentially longer. The Clean Air Act currently 
requires facilities to comply with emissions limits ``as 
expeditiously as practicable'' and within three years at 
most.\18\ The bill requires EPA to consider numerous factors 
when establishing a compliance date, including the costs of 
achieving emissions reductions, feasibility, availability of 
equipment and labor, and potential net employment impacts. This 
provides a new basis for industry litigation on any final 
rules.
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    \18\CAA Sec. 112(i)(3).
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    Gina McCarthy, Assistant Administrator for Air and 
Radiation at the U.S. Environmental Protection Agency, 
testified that delaying implementation of the major source 
boiler rule for three years would allow up to 20,000 additional 
premature deaths; 12,000 additional heart attacks; and 123,000 
additional asthma attacks that could have been avoided.\19\ 
Three years is likely on the short end of the possible delay, 
given the delays embedded in the bill and new litigation that 
would flow from several of the provisions.
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    \19\Testimony of Gina McCarthy, Assistant Administrator for Air and 
Radiation, U.S. Environmental Protection Agency, before the 
Subcommittee on Energy and Power, Legislative Hearing on H.R. 2250, the 
EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector 
Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011).
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    Section 5 of the bill arguably undermines the fundamental 
premise of sections 112 and 129 of the Clean Air Act. Section 5 
establishes two new criteria for EPA to consider when setting 
emissions standards for toxic air pollution. One could 
interpret these criteria as supplanting the existing criteria 
for determining MACT, substantially weakening the existing 
standards for controlling toxic air pollution. Alternatively, 
one could interpret this section as complementing but not 
replacing current law. In that case, these criteria would 
merely inform decisions where EPA currently has discretion, 
such as in setting MACT standards more stringent than what is 
required by law. Both the intent of the provisions and the 
legal effect of the language are ambiguous, providing at 
minimum new legal risks and opportunities for litigation. 
During questioning by Ranking Member Waxman at the September 8 
legislative hearing, Ms. McCarthy from EPA stated that section 
5 of both bills could ``raise legal uncertainty.''\20\
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    \20\Id.
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    If section 5 of the bill overrides current Clean Air Act 
standards, the result would be less stringent emissions 
reduction requirements and weaker protections for public 
health.
    Section 5(a) of the bill requires EPA to set emissions 
standards that can be met under actual operating conditions 
``consistently and concurrently with emission standards for all 
other air pollutants'' taking into account several mitigating 
factors. Committee Members supporting this provision and 
witnesses at the hearings suggested that this is intended to 
change how EPA sets air toxics standards.
    EPA has set MACT standards for numerous sources since 1990. 
Sections 112 and 129 of the Clean Air Act require EPA to set 
toxic air pollution standards for a source category based on 
the average emissions levels achieved by the best performing 
12% of facilities in that industry. EPA does this on a 
pollutant-by-pollutant basis. EPA reviews the emissions levels 
being achieved in practice and calculates the average of the 
cleanest 12% of sources for each pollutant.
    The language in the bill suggests that EPA may have to set 
MACT limits based on the ``best performing sources'' for all 
pollutants in the aggregate. If this is what the language 
requires, it would be an impossible task for EPA. The agency 
would have to determine, for example, whether a plant that 
emits 150 pounds of mercury and 100 tons of lead each year is 
better or worse performing than a plant that emits 200 pounds 
of mercury and 50 tons of lead. Giving EPA open-ended and 
unworkable directions is a recipe for delay, litigation, and 
weak, if any, standards.
    Similarly, section 5(b) could be interpreted to require EPA 
to forego numeric emissions limits in favor of less stringent 
work practice standards. Sections 112 and 129 of the Clean Air 
Act require EPA to set MACT standards for new and existing 
sources of pollution based on the emission levels achieved by 
relatively clean similar facilities. When the Administrator 
determines that it is not feasible to reduce pollution by 
prescribing or enforcing emissions standards for a source, she 
may promulgate less protective work practice standards 
instead.\21\ In fact, that is what EPA chose to do for smaller, 
less polluting boilers as part of its MACT rulemaking for these 
sources. Section 5(b), however, may compel the Administrator to 
choose the least burdensome regulatory option, including work 
practice standards, without requiring a finding of 
infeasibility. As a result, EPA could be required to set work 
practice standards across the board, even if a more stringent 
standard is feasible and more protective of public health. John 
Walke, a senior attorney at the Natural Resources Defense 
Council, testified that this section ``would have the effect of 
exempting industrial boilers and incinerators from maximum 
reductions in toxic air pollution emissions, in contrast to 
almost any other major industrial source of toxic air pollution 
in the nation.''\22\
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    \21\CAA Sec. 112(h).
    \22\Testimony of John Walke, Senior Attorney, Natural Resources 
Defense Council, before the Subcommittee on Energy and Power, 
Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 
and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th 
Cong. (Sept. 8, 2011).
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    Ranking Member Bobby Rush introduced an amendment in the 
subcommittee and full committee markups to clarify that section 
5 is intended to supplement but not supplant EPA's existing 
authority under sections 112 and 129 of the Clean Air Act. This 
amendment was defeated in full committee by a vote of 16 to 34. 
Congresswoman Tammy Baldwin introduced an amendment during the 
full committee markup to strike this ambiguous language and 
replace it with a simple provision directing EPA to use its 
existing authority to address industry concerns about meeting 
the emissions limits for each pollutant at the same time. This 
amendment was defeated in full committee by a vote of 17 to 34.
    Section 4 of the bill could exempt facilities that burn 
waste from the standards that apply to incinerators, which are 
subject to more stringent monitoring, reporting and pollution 
control requirements under section 129 of the Clean Air Act. 
The bill directs EPA to adopt the definitions of ``commercial 
and industrial solid waste incineration unit,'' ``commercial 
and industrial waste,'' and ``contained gaseous material'' as 
prescribed in the 2000 EPA rule on solid waste 
incineration.\23\ In 2007, the U.S. Court of Appeals for the 
District of Columbia vacated these definitions as inconsistent 
with the plain language and intent of the Clean Air Act.\24\ 
The court also determined that the narrow definition of 
commercial and industrial waste ``substantially reduces'' the 
number of facilities subject to the more stringent section 129 
requirements by exempting any incinerator that recovers or has 
the potential to recover energy.\25\
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    \23\U.S. Environmental Protection Agency, Standards for Performance 
of New Stationary Sources and Emission Guidelines for Existing Sources: 
Commercial and Industrial Solid Waste Incineration Units, 65 Fed. Reg. 
75338 (Dec. 1, 2000).
    \24\Due to procedural errors in the rulemaking, EPA reconsidered 
and re-promulgated the 2000 definition in 2005 in substantially similar 
form. The court vacated the 2005 rule. See Natural Resources Defense 
Council, v. U.S. Environmental Protection Agency, 489 F.3d 1250 (D.C. 
Cir. 2007).
    \25\Id.
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    For the reasons stated above, we dissent from the views 
contained in the Committee's report.
                                   Henry A. Waxman.
                                   Bobby L. Rush.
                                   Diana DeGette.
                                   Jan Schakowsky.
                                   Ed Towns.
                                   Lois Capps.
                                   Eliot Engel.
                                   Edward J. Markey.
                                   Anna G. Eshoo.
                                   Mike Doyle.
                                   Doris O. Matsui.
                                   Frank Pallone, Jr.

                                  
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