[House Report 112-227]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-227

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



 
              CEMENT SECTOR 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. 2681]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2681) to provide additional time for the 
Administrator of the Environmental Protection Agency to issue 
achieveable standards for cement manufacturing facilities, 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
Amendment........................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Hearings.........................................................     9
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    14
Statement of General Performance, Goals and Objectives...........    14
New Budget Authority, Entitlement Authority, and Tax Expenditures    14
Earmark..........................................................    14
Committee Cost Estimate..........................................    14
Congressional Budget Office Estimate.............................    14
Federal Mandates Statement.......................................    15
Advisory Committee Statement.....................................    15
Applicability to Legislative Branch..............................    15
Section-by-Section Analysis of Legislation.......................    15
Changes in Existing Law Made by the Bill, as Reported............    16
Dissenting Views.................................................    17

                               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 ``Cement Sector 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 the Portland cement manufacturing 
        industry and Portland cement plants 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 industry and plants 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.--
          (1) The following rule is of no force or effect, shall be 
        treated as though such rule had never taken effect, and shall 
        be replaced as described in subsection (a): ``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).
          (2) 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), insofar as such 
        rules are applicable to the Portland cement manufacturing 
        industry and Portland cement plants:
                  (A) ``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).
                  (B) ``Identification of Non-Hazardous Secondary 
                Materials That Are Solid Waste'', published at 76 Fed. 
                Reg. 15456 (March 21, 2011).

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 section 2(b)(2), 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. 2681, the ``Cement Sector Regulatory Relief Act of 
2011,'' was introduced by Rep. John Sullivan (together with 
Reps. Ross, Kinzinger, Latta, Walden, Barton, Carter, Dent, 
Boren and Altmire) on July 28, 2011. The legislation gives the 
Environmental Protection Agency (EPA) additional time and 
guidelines to develop achievable rules under the Clean Air Act 
(CAA) governing emissions of hazardous air pollutants from 
cement manufacturing plants. Key provisions of the bill would:
           Provide EPA with 15 months to re-propose and 
        finalize achievable rules for cement manufacturing 
        facilities;
           Extend compliance deadlines from 3 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 cement manufacturing 
        plants to continue to use alternative fuels for energy 
        recovery; and
           Direct EPA to ensure that new rules are 
        achievable by cement manufacturing facilities in the 
        United States and impose the least burdensome 
        regulatory alternatives consistent with the purposes of 
        the CAA and President Obama's Executive Order 13563 
        regarding improving regulation and regulatory review.

                  BACKGROUND AND NEED FOR LEGISLATION

Introduction

    American cement producers are struggling to remain globally 
competitive in the current economic climate. The domestic 
cement sector currently faces numerous new EPA rules under the 
CAA and other statutes. Among the most significant and costly 
rules for this sector are three interrelated, highly complex, 
and data-intensive rules setting new standards affecting the 
nation's approximately 100 Portland cement manufacturing 
plants.
    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. 2681 including the 
following:
          (1) National Emission Standards for Hazardous Air 
        Pollutants from the Portland Cement Manufacturing 
        Industry and Standards of Performance for Portland 
        Cement Plants (commonly referred to as ``Cement MACT'' 
        or ``Cement NESHAP''), 75 Fed. Reg. 54970 (September 9, 
        2010), promulgated under Section 112 and 111 of the 
        Clean Air Act;
          (2) 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,
          (3) 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.
    The Cement MACT Rule and the CISWI Rules collectively 
affect the nation's nearly 100 Portland cement plants. The 
Cement MACT Rule amends the Agency's MACT standards for cement 
kilns issued in 1999, as well as amending new source 
performance standards for these facilities. 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 CAA.
    There has been widespread concern within the cement sector 
about the costs and feasibility of implementing these rules as 
currently written. The Cement Sector Regulatory Relief Act of 
2011 is designed to give EPA the time and parameters it needs 
to develop standards for cement manufacturing plants that will 
protect public health and the environment without undue threat 
of cement plant shutdowns and the associated loss of thousands 
of jobs across the United States.
            Potential economic and job impacts
    EPA estimates that the capital costs associated with the 
Cement MACT rule will be $2.2 billion that up to 12 cement 
plants may be idled or permanently shut down under the rule, 
and that there will be a 5.4 percent increase in the average 
price of Portland cement. The Portland Cement Association, 
however, has estimated $3.4 billion in compliance costs for the 
Cement MACT Rule alone, and an additional $2 billion for the 
CISWI Rule. They also estimate the potential shutdowns 
attributable to the rules to be up to 18 plants (representing 
11 million metric tons of capacity) or more--a loss of up to 
4,000 jobs directly attributable to the projected plant 
shutdowns triggered by the new rules, and an additional 12,000 
to 19,000 job losses in the construction industry due to higher 
cement and concrete costs. They also project increased imports 
of cement from China and other cement exporting nations with 
weaker environmental regulations and thus higher emissions.
    These rules affecting the cement sector have particularly 
severe potential impacts in the current economic climate. For 
example, at a September 8, 2011, hearing before the 
Subcommittee on Energy and Power, Dan Harrington, President and 
CEO of Lehigh Hanson, testified that ``[t]he current recession 
has been far too long and far too deep, and it has left the 
cement industry in its weakest economic conditions since the 
1930s.'' He further testified that for those employed at the 
plants that may be shut down by EPA's rules, ``the 
opportunities are very limited because they are high-wage jobs. 
Most of our employees are represented by collective bargaining 
agreement so they are union employees and they are well paid. 
They are highly skilled and they are very specialized for the 
plants and the equipment that we run, so just transferring that 
job knowledge is difficult. So it will be devastating to those 
communities.''
    At the same time EPA is promulgating these rules, the U.S. 
economy has been suffering and unemployment remains extremely 
high, particularly for the U.S. construction industry. The 
President has responded by, among other things, supporting 
major infrastructure projects as a means to create jobs and 
jump-start the economy. Federal funding for such projects was a 
significant component of the 2009 stimulus package, and it 
remains a top priority with the Administration as is evidenced 
by the President's proposed American Jobs Act, which maintains 
an emphasis on infrastructure. A critical component of these 
proposed roads, bridges, tunnels, buildings, and other 
infrastructure projects is cement.

The need for a legislative stay and more compliance time

    All three rules have been challenged before the Agency and 
in the Federal courts. Although EPA has initiated 
reconsideration of two of the rules (the Cement MACT and CISWI 
Rules), and issued a limited stay of the effective date for one 
of the rules (the CISWI Rule), there continues to be 
significant regulatory uncertainty, and cement producers are in 
a state of limbo. This is because the outcome of EPA's 
reconsideration process is unknown, including whether EPA's 
stay will be upheld as it has been challenged in Federal court.
    Legislation staying the rules is needed to prevent cement 
manufacturing plants located across the United States from 
having to decide whether to make millions of dollars in major 
and irreversible capital expenditures to comply before they 
know what the rules ultimately will require, or to shut down. A 
legislative stay for a sufficient period of time, moreover, is 
essential to ensure EPA has adequate time to resolve difficult 
technical issues and develop more workable rules for the 
sector.
    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. cement manufacturers can finance 
and install necessary control equipment, 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 affecting the cement manufacturing sector taking 
effect over the next few years.
    Witnesses have addressed the need for a legislative stay of 
the rules and extension of the compliance periods. On April 15, 
2011, the Subcommittee on Energy and Power received testimony 
from Aris Papadopoulos, chairman of the Portland Cement 
Association, who stated that while the industry has invested 
tens of billions of dollars in modernizing and expanding 
facilities with state-of-the-art technologies, many plants 
would not be able to comply with the rules in the compliance 
periods under the current rules. He stated that the Cement MACT 
Rule, as originally promulgated, ``is either technically and/or 
economically unachievable,'' and that it ``would close 18 of 
the country's 100 cement plants during the next two years.'' 
Similarly, on September 8, 2011, the Subcommittee on Energy and 
Power received testimony from Dan Harrington, President and CEO 
of Lehigh Hanson, who said that H.R. 2681 ``will mitigate 
regulatory uncertainty and place these rules on a more 
reasonable schedule. This bill will enable the industry to 
continue to make capital investments in the U.S. market that 
will preserve jobs that serve as the anchor of dozens of 
American communities.''

The need for achievable regulations

    In addition to the need for adequate time for issuance and 
compliance with the Cement MACT and CISWI Rules, there is a 
pressing need for ensuring that these rules are achievable in 
practice. Cement manufacturers have not opposed regulation, but 
rather advocated for achievable and affordable rules.
    Substantive concerns with the Cement MACT and CISWI Rules 
have focused on the need for standards that are achievable by 
real-world cement plants consistently for all regulated 
pollutants across the full range of operating conditions, as 
required by the CAA. Many stakeholders in the cement sector 
specifically have expressed concern about EPA's practice of 
setting standards following a ``pollutant-by-pollutant'' 
approach. In particular, commenters on the Cement MACT Rule 
submitted comments challenging that approach. See 75 Fed. Reg. 
54998-54999 (September 9, 2011). They have maintained that 
Congress intended actual sources, performing under real-life 
conditions, be the benchmark for determining the MACT floors, 
and that the focus should be on what the best existing source 
or sources for all pollutants truly can achieve on an overall 
basis.
    EPA itself has indicated that the CAA can be interpreted to 
support a ``plant-by-plant'' or source-based approach. In the 
Cement MACT Rule, 75 Fed. Reg. 54998-54999 (September 9, 2011), 
EPA expressly stated that Section 112(d)(3) of the CAA 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 Cement MACT Rule which has led to unachievable 
standards.
    As a result, no cement plants in the United States 
currently can meet all the recent EPA standards. On September 
8, 2011, EPA Assistant Administrator Gina McCarthy acknowledged 
that fact stating ``I do not believe there is a single 
facility'' that currently meets the Cement MACT standards. 
Consistent with this testimony, the legislative record for H.R. 
2681 includes a Portland Cement Association study issued in 
January 2011, which found that ``[n]o cement plant in the 
United States can currently meet all NESHAP and/or CISWI 
standards simultaneously.'' 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 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, which are now used as fuel, as ``solid waste'' 
under the Resource Conservation and Recovery Act. Accordingly, 
cement kilns 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 CAA. As a 
result of the changes in the definition of ``solid waste,'' 
many cement plants will discontinue the good practice of 
recovering energy from tire-derived and other materials, and 
the materials will be treated as waste and landfilled--a bad 
result for the environment.
    On September 8, 2011, the Subcommittee on Energy and Power 
received testimony from Dan Harrington of Lehigh Hanson, and 
chairman of the Government Affairs Council of the Portland 
Cement Association, who stated that ``the CISWI and solid waste 
rules actually undermine environmental quality by creating 
barriers to the combustion and reuse of 12 million tons of 
other industries' byproducts in cement kilns, byproducts which 
would otherwise be landfilled. This includes the re-use of 
millions of used tires as a non-hazardous and high-BTU fuel--
which is in direct contrast to the many years of Agency support 
and encouragement of the beneficial use of scrap tires as a 
fuel in cement kilns.''

Benefits

    While the regulated community, as noted above, does not 
oppose the issuance of achievable regulations, and H.R. 2681 
requires EPA to promulgate new rules to regulate hazardous air 
pollutant emissions from cement manufacturing facilities, 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 before 
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 also 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 Cement Sector Regulatory Relief Act of 2011 would do

    Under H.R. 2681, EPA would be required to promulgate new 
rules to replace the three rules referenced above for the 
cement manufacturing sector, 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 current reconsideration 
proceedings, and to set reasonable compliance dates for cement 
producers to install necessary controls and to come into 
compliance with the new rules.
    In promulgating the new rules for cement manufacturing 
facilities, H.R. 2681 would require that EPA, in defining the 
terms ``commercial and industrial solid waste incineration 
unit,'' ``commercial and industrial solid waste,'' and 
``contained gaseous material,'' 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 at cement manufacturing facilities 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. 2681 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 CAA 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.
    Section 5(a) clarifies Congress' intent that the standards 
EPA sets are 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 the data that EPA relied on to 
develop the cement kiln 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 cement kiln 
emission variability.
    Finally, H.R. 2681 also reiterates that in promulgating the 
new rules, the Administrator should impose the least burdensome 
regulatory alternatives, consistent with the purposes of the 
CAA 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.''
    In that executive order relating to improving regulation 
and regulatory review, the President recognized the need for 
regulations, but emphasized that regulatory agencies must do so 
``while promoting economic growth, innovation, competitiveness, 
and job creation.'' This provision in H.R. 2681 is intended to 
ensure that where alternative measures authorized by the CAA 
will achieve the goals of the Act, that the Administrator 
chooses the least burdensome of those alternatives consistent 
with the objectives of the Act and the President's recent 
executive order.

Supporters of the legislation

    Supporters of H.R. 2681 include the Portland Cement 
Association, National Association of Manufacturers, U.S. 
Chamber of Commerce, and the International Brotherhood of 
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and 
Helpers.

                                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. 2681, 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. 2681 was introduced on July 28, 2011, by 
Representatives Sullivan and Ross, together with 
Representatives Kinzinger, Latta, Walden, Barton, Carter, Dent, 
Boren and Altmire.
    On September 8, 2011, the Subcommittee on Energy and Power 
held a legislative hearing on H.R. 2681.
    On September 13, 2011, the Subcommittee on Energy and Power 
reported the bill favorably to the full committee by voice 
vote. During the markup, one amendment was 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, two 
amendments were offered, one of which was adopted by voice 
vote.

                            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. 2681, reported to the House, 
as amended, was agreed to by a record vote of 33 yeas and 12 
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. 2681 provides additional time and guidelines for the 
Administrator of the Environmental Protection Agency to issue 
achievable standards for cement manufacturing facilities.

    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. 
2681, the Cement Sector 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. 2681, the Cement Sector 
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.

H.R. 2681--Cement Sector Regulatory Relief Act of 2011

    Summary: Over the past year, EPA completed three emissions 
standards that apply to cement manufacturing plants. H.R. 2681 
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; plants 
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. 2681 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 2681 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. 2681 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. 
2681 will be enacted by the end of 2011 and that the necessary 
amounts to implement the legislation will be appropriated for 
each year.
    According to EPA, the agency spent about $2 million over 
the 2008-2011 period to develop and finalize the emissions 
standards for cement manufacturing plants. CBO estimates that 
it would cost EPA about $2 million over the 2012-2016 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 EPA 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 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 of $1 million over the next 
five years.
    Pay-As-You-Go considerations: None.
    Intergovernmental and private-sector impact: H.R. 2681 
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

    This section provides the short title of ``Cement Sector 
Regulatory Relief Act of 2011.''

Section 2--Legislative stay

    Sections 2(a) and 2(b) direct the Administrator of the EPA 
to issue new rules to replace three published, interrelated EPA 
rules setting MACT and other performance standards for the 
Portland cement manufacturing industry and Portland cement 
plants. These rules were issued under sections 112 and 129 of 
the CAA, and sections 2002(a)(1) and 1004(27) of RCRA. Section 
2(b) directs the Administrator to finalize the new rules 15 
months from the date of enactment of the Act.

Section 3--Compliance dates

    Section 3(a) extends the deadline for compliance with the 
new rules from 3 years to not earlier than 5 years from the 
date of enactment of the Act to allow sufficient time for 
facilities to install controls.
    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

    This section 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 a 2000 rule promulgated by the Clinton 
Administration. 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 should 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 emissions limits achieved in 
practice by real-world cement manufacturing facilities.
    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

    The purpose of this bill is to delay EPA from implementing 
long overdue standards to reduce toxic air pollution from 
cement kilns, one of the largest sources of airborne mercury in 
the United States.
    The bill's supporters often claim that the bill will give 
EPA the time it needs to ``get the rules right.''\1\ 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 cement manufacturing facilities.''
---------------------------------------------------------------------------
    \1\Statement of Congressman Morgan Griffith, 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).
---------------------------------------------------------------------------
    This is misleading for several reasons. First, as explained 
in more detail below, section 2 of bill effectively vacates 
EPA's already-finalized cement kiln rules and prohibits EPA 
from finalizing new regulations for 15 months. In addition, 
section 3 of the bill bars EPA from requiring cement kilns 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, 
categorically 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.''\3\
---------------------------------------------------------------------------
    \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).
    \3\Id.
---------------------------------------------------------------------------
    Subcommittee Chairman Ed Whitfield also claimed that this 
bill requires EPA to implement new emissions controls for 
cement kilns but replaces ``unrealistic targets and timetables 
with achievable ones.''\4\ Congressman Lee Terry called the 
technology to reduce these emissions from cement kilns a ``pipe 
dream.''\5\ Congressman John Shimkus stated that the standards 
should be ``achievable by real-world facilities, not desktop 
analysis, not mathematical formulas or equations but ones that 
industry can actually achieve.''\6\ These statements suggest 
that EPA's cement kiln rules are based on standards that are 
not reasonable or available. That is not the case.
---------------------------------------------------------------------------
    \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 Congressman Lee Terry, 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\Statement of Congressman John Shimkus, 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).
---------------------------------------------------------------------------
    In fact, the Clean Air Act requires EPA to set specific 
emission limits for toxic 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.\7\ 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%.\8\ For new 
sources, the emission standard must be at least as stringent as 
the emissions levels achieved by the best-controlled similar 
source.\9\ These minimum emissions levels are known as the 
Maximum Achievable Control Technology (MACT) floor.
---------------------------------------------------------------------------
    \7\CAA Sec. 112(d).
    \8\CAA Sec. 112(d)(3).
    \9\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.''\10\ Congressman John Shimkus stated that the ``whole 
idea of this bill is to create certainty.''\11\ Daniel 
Harrington, testifying on behalf of the Portland Cement 
Association, stated that the bill will ``mitigate regulatory 
uncertainty and place these rules on a more reasonable 
schedule.''\12\
---------------------------------------------------------------------------
    \10\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).
    \11\Statement of Congressman John Shimkus, 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).
    \12\Testimony of Daniel Harrington, CEO, Lehigh Hanson, 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).
---------------------------------------------------------------------------
    The bill actually would create substantial uncertainty for 
industry, both on the timing for compliance and the degree of 
emission control required. It also will do nothing to reassure 
communities living near cement kilns that EPA will be able to 
achieve meaningful reductions in toxic air pollution. 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.''\13\
---------------------------------------------------------------------------
    \13\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.\14\ Environmental 
lawyers who have been litigating these provisions for decades 
told the subcommittee that this section would override current 
law and exempt cement kilns from requirements to achieve 
maximum reductions in toxic air pollution.\15\ 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.
---------------------------------------------------------------------------
    \14\Id.
    \15\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 
additional time to complete a rulemaking it has already 
finalized. 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, leading to learning disabilities and lowered IQ.
    On August 6, 2010, EPA issued final rules to reduce toxic 
air pollution from cement kilns under section 111 (new source 
performance standards) and section 112 (MACT).\16\ The new 
source performance standards will reduce nitrogen oxides, 
sulfur dioxide, and particulate matter and will apply to all 
cement kilns built after June 16, 2008. The MACT standards will 
reduce mercury and acid gases by 92% and 97%, respectively.\17\
---------------------------------------------------------------------------
    \16\U.S. Environmental Protection Agency, National Emission 
Standards for Hazardous Air Pollutants from the Portland Cement 
Manufacturing Industry and Standards of Performance for Portland Cement 
Plants, Final Rule 75 Fed. Reg. 54970 (Sept. 9, 2010).
    \17\Id.
---------------------------------------------------------------------------
    The rules will reduce mercury and other hazardous air 
pollutants by 16,600 pounds, but EPA does not have sufficient 
data to monetize the resulting health benefits.\18\ In 
addition, reductions in particulate matter will avoid 17,000 
cases of aggravated asthma, 1,500 heart attacks, 650 cases of 
chronic bronchitis, and 130,000 days when people miss work. The 
monetized benefits are estimated to be between $6.7 billion and 
$18 billion per year in 2013, while the costs are estimated at 
$350 million annually.\19\
---------------------------------------------------------------------------
    \18\U.S. Environmental Protection Agency, Fact Sheet, Final 
Amendments to National Air Toxics Emission Standards and New Source 
Performance Standards for Portland Cement Manufacturing (Aug. 9, 2010).
    \19\Id.
---------------------------------------------------------------------------

 III. BILL SUMMARY: H.R. 2681, CEMENT SECTOR REGULATORY RELIEF ACT OF 
                                  2011

    This bill delays implementation of rules to reduce 
hazardous air pollution from cement kilns, undermines EPA's 
authority to require application of the best performing 
emissions control technologies on cement kilns, and allows more 
cement kilns to incinerate waste without being subject to the 
more stringent pollution control requirements that apply to 
waste incinerators.
    Section 2 of bill effectively vacates EPA's cement kiln 
rules and directs EPA to promulgate new MACT standards for 
these facilities. 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 John Sullivan 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, section 3 of the bill 
bars EPA from requiring cement 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.\20\ 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.
---------------------------------------------------------------------------
    \20\CAA Sec. 112(i)(3).
---------------------------------------------------------------------------
    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 from cement kilns. 
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.''\21\
---------------------------------------------------------------------------
    \21\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).
---------------------------------------------------------------------------
    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.\22\ 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 cement kilns from maximum reductions in 
toxic air pollution emissions, ``in contrast to almost other 
major industrial source of toxic air pollution in the 
nation.''\23\
---------------------------------------------------------------------------
    \22\CAA Sec. 112(h).
    \23\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).
---------------------------------------------------------------------------
    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 13 to 32.
    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.\24\ 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.\25\ 
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.\26\
---------------------------------------------------------------------------
    \24\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).
    \25\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).
    \26\Id.
---------------------------------------------------------------------------
    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 L. Engel.
                                   Edward J. Markey.
                                   Anna G. Eshoo.
                                   Mike Doyle.
                                   Doris O. Matsui.
                                   Frank Pallone, Jr.
                                   Donna M. Christensen.

                                  
