99–006 

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 


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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)). 


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(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. 


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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 


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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 highwage 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 


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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 realworld 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 


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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 


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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. 


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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 


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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. 


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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. 


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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. 


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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 


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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. 


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1Statement 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). 2Testimony 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. 

4Statement 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). 5Statement 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). 6Statement 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). 

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.’’ 

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

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. 


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7 CAA § 112(d). 

8 CAA § 112(d)(3). 

9 CAA § 112(d)(3). 

10Statement 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). 11Statement 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). 12Testimony 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). 13Testimony 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). 14 Id. 15Testimony 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 ReIn 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. 

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

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

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 


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lief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th Cong. 

(Sept. 8, 2011). 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. 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. 

legal interpretations of the language. All that is certain is that this 

language will create new litigation to determine which interpretation prevails. 

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 technologybased 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

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


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20 CAA § 112(i)(3). 21Testimony 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). 

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. 

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

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. 


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22 CAA § 112(h). 23Testimony 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). 

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

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 


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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). 25Due 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. 

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

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. 

Æ 


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