H.R. 2250, THE EPA REGULATORY RELIEF ACT 

OF 2011, AND H.R. 2681, THE CEMENT SECTOR 

REGULATORY RELIEF ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

SEPTEMBER 8, 2011 

Serial No. 112–82 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

H.R. 2250, THE EPA REGULATORY RELIEF ACT OF 2011, AND H.R. 2681, THE CEMENT 

SECTOR REGULATORY RELIEF ACT OF 2011 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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74–205 PDF 2012

H.R. 2250, THE EPA REGULATORY RELIEF ACT 

OF 2011, AND H.R. 2681, THE CEMENT SECTOR 

REGULATORY RELIEF ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

SEPTEMBER 8, 2011 

Serial No. 112–82 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

SUBCOMMITTEE ON ENERGY AND POWER

ED WHITFIELD, Kentucky 

Chairman 

JOHN SULLIVAN, Oklahoma 

Vice Chairman 

JOHN SHIMKUS, Illinois 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MICHAEL C. BURGESS, Texas 

BRIAN P. BILBRAY, California 

STEVE SCALISE, Louisiana 

CATHY MCMORRIS RODGERS, Washington 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

H. MORGAN GRIFFITH, Virginia 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JAY INSLEE, Washington 

KATHY CASTOR, Florida 

JOHN D. DINGELL, Michigan 

EDWARD J. MARKEY, Massachusetts 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

CHARLES A. GONZALEZ, Texas 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 17 

Prepared statement .......................................................................................... 18 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 20 

Prepared statement .......................................................................................... 21 

Hon. John Sullivan, a Representative in Congress from the State of Oklahoma, opening statement .................................................................................... 23 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 33 

Hon. Cathy McMorris Rodgers, a Representative in Congress from the State 

of Washington, opening statement ..................................................................... 34 

Hon. Pete Olson, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 35 

Prepared statement .......................................................................................... 36 

Hon. H. Morgan Griffith, a Representative in Congress from the Commonwealth of Virginia, opening statement ............................................................... 37 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 141 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 149 

WITNESSES

Regina McCarthy, Assistant Administrator for Air and Radiation, Environmental Protection Agency .................................................................................... 130 

Prepared statement .......................................................................................... 132 

Daniel M. Harrington, President and CEO, Lehigh Hanson, Inc. ....................... 182 

Prepared statement .......................................................................................... 184 

James A. Rubright, CEO, RockTenn Company ..................................................... 188 

Prepared statement .......................................................................................... 190 

Answers to submitted questions ...................................................................... 316 

Paul Gilman, Chief Sustainability Officer, Covanta Energy Corporation .......... 195 

Prepared statement .......................................................................................... 197 

John D. Walke, Clean Air Director and Senior Attorney, Natural Resources 

Defense Council .................................................................................................... 214 

Prepared statement .......................................................................................... 216 

Eric Schaeffer, Director, Environmental Integrity Project ................................... 246 

Prepared statement .......................................................................................... 248 

Peter A. Valberg, Principal, Gradient Corporation ............................................... 252 

Prepared statement .......................................................................................... 254 

Todd Elliott, General Manager, Acetate, Celanese Corporation .......................... 257 

Prepared statement .......................................................................................... 259 

SUBMITTED MATERIAL

H.R. 2250, A Bill to provide additional time for the Administrator of the 

Environmental Protection Agency to issue achievable standards for industrial, commercial, and institutional boilers, process heaters, and incinerators, and for other purposes, submitted by Mr. Whitfield .............................. 2 

H.R. 2681, A Bill to provide additional time for the Administrator of the 

Environmental Protection Agency to issue achievable standards for cement 

manufacturing facilities, and for other purposes, submitted by Mr. 

Whitfield ............................................................................................................... 10 

Page

IV 

Letter, dated August 25, 2011, from Anthony Jacobs, Special Assistant to 

the International President, Acting Director of Legislative Affairs, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, 

Forgers & Helpers, to committee leadership, submitted by Mr. Sullivan ....... 24 

Letter, dated September 1, 2011, from Paul A. Yost, Vice President, Energy 

and Resources Policy, National Association of Manufacturers, to Mr. Upton, 

submitted by Mr. Sullivan ................................................................................... 26 

Letter, dated July 28, 2011, from 25 Senators to House leadership, submitted 

by Mr. Sullivan ..................................................................................................... 28 

Letter, dated September 7, 2011, from R. Bruce Josten, Executive Vice President, Government Affairs, Chamber of Commerce of the United States 

of America, to committee leadership, submitted by Mr. Sullivan .................... 32 

Letter, dated September 6, 2011, from the National Association of Manufacturers to House and Senate leadership, submitted by Mr. Griffith ................. 38 

Letter, dated July 5, 2011, from Cal Dooley, President and CEO, American 

Chemistry Council, to Mr. Upton, submitted by Mr. Griffith .......................... 43 

Letter, dated June 28, 2011, from Donna Harman, President and Chief Executive Officer, American Forest & Paper Association, and Robert Glowinski, 

President, American Wood Council, to committee and subcommittee leadership, submitted by Mr. Griffith ........................................................................... 44 

Letter, undated, from James Valvo, Director of Government Affairs, Americans for Prosperity, to Mr. Griffith, submitted by Mr. Griffith ........................ 46 

Letter, dated July 1, 2011, from Bill Perdue, Vice President, Regulatory 

Affairs, American Home Furnishings Alliance, to committee and subcommittee leadership submitted by Mr. Griffith ............................................... 48 

Letter, dated September 7, 2011, from Jolene M. Thompson, Senior Vice 

President, American Municipal Power, Inc., and Executive Director, Ohio 

Municipal Electric Association, to committee and subcommittee leadership, 

submitted by Mr. Griffith .................................................................................... 51 

Letter, dated July 15, 2011, from Edward R. Hamberger, President and 

Chief Executive Officer, Association of American Railroads, to committee 

and subcommittee leadership, submitted by Mr. Griffith ................................ 54 

Letter, dated July 14, 2011, from Robert E. Cleaves, President and CEO, 

Biomass Power Association, to committee and subcommittee leadership, 

submitted by Mr. Griffith .................................................................................... 56 

Letter, dated July 1, 2011, from Alexander Toeldte, President and CEO, 

Boise, Inc., to committee and subcommittee leadership, submitted by Mr. 

Griffith .................................................................................................................. 58 

Statement, dated June 22, 2011, of Business Roundtable, submitted by Mr. 

Griffith .................................................................................................................. 59 

Letter, dated July 8, 2011, from R. Bruce Josten, Executive Vice President, 

Government Affairs, Chamber of Commerce of the United States of America, to committee leadership, submitted by Mr. Griffith .................................. 61 

Letter, dated July 7, 2011, from Audrae Erickson, President, Corn Refiners 

Association, to committee and subcommittee leadership, submitted by Mr. 

Griffith .................................................................................................................. 62 

Letter, dated July 20, 2011, from Robert D. Bessette, President, Council 

of Industrial Boiler Owners, to committee and subcommittee leadership, 

submitted by Mr. Griffith .................................................................................... 64 

Letter, dated August 5, 2011, from Thomas S. Howard, Vice President, Government Relations, Domtar, to committee and subcommittee leadership, 

submitted by Mr. Griffith .................................................................................... 66 

Letter, dated July 5, 2011, from Florida State Council, International Association of Machinists & Aerospace Workers, to committee and subcommittee 

leadership, submitted by Mr. Griffith ................................................................ 68 

Letter, dated July 1, 2011, from Jose F. Alvarez, Executive Vice President, 

Operations, and General Manager, Sugar Cane Growers Cooperative of 

Florida, on behalf of the Florida Sugar Industry and the sugarcane processors in Texas and Hawaii, to committee and subcommittee leadership, 

submitted by Mr. Griffith .................................................................................... 70 

Letter, dated June 30, 2011, from Paul Cicio, President, Industrial Energy 

Consumers of America, to committee and subcommittee leadership, submitted by Mr. Griffith .......................................................................................... 72 

Statement, dated August 29, 2011, of Edwin D. Hill, International President, 

International Brotherhood of Electrical Workers, submitted by Mr. Griffith . 74 

Page

V 

Letter, dated July 14, 2011, from Ann Wrobleski, Vice President, Global 

Government Relations, International Paper, to commmittee and subcommittee leadership, submitted by Mr. Griffith .............................................. 75 

Letter, dated July 13, 2011, from Mike Blosser, Vice President, Environment, 

Health and Safety, Louisiana-Pacific Corporation, to committee and subcommittee leadership, submitted by Mr. Griffith .............................................. 76 

Letter, dated July 7, 2011, from Dirk J. Krouskop, Vice President, Safety, 

Health and Environment, MeadWestvaco Corporation, to Mr. Upton, submitted by Mr. Griffith .......................................................................................... 78 

Letter, dated July 13, 2011, from Paul A. Yost, Vice President, Energy and 

Resources Policy, National Association of Manufacturers, submitted by Mr. 

Griffith .................................................................................................................. 79 

Letter, dated July 11, 2011, from Raymond J. Poupore, Executive Vice President, National Construction Alliance II, to Mr. Griffith, submitted by Mr. 

Griffith .................................................................................................................. 81 

Letter, dated July 6, 2011, from Susan Eckerly, Senior Vice President, Public 

Policy, National Federation of Independent Business, to committee and 

subcommittee leadership, submitted by Mr. Griffith ........................................ 83 

Letter, dated July 11, 2011, from Thomas A. Hammer, President, National 

Oilseed Processors Association, to committee and subcommittee leadership, 

submitted by Mr. Griffith .................................................................................... 85 

Letter, dated July 15, 2011, from Bruce J. Parker, CEO and President, 

National Solid Wastes Management Association, to committee and subcommittee leadership, submitted by Mr. Griffith .............................................. 87 

Letter, dated June 30, 2011, from Daniel Moss, Senior Manager, Government 

Relations, Society of Chemical Manufacturers and Affiliates, to committee 

and subcommittee leadership, submitted by Mr. Griffith ................................ 89 

Letter, dated August 3, 2011, from Lewis F. Gossett, President and CEO, 

South Carolina Manufacturers Alliance, to committee and subcommittee 

leadership, submitted by Mr. Griffith ................................................................ 91 

Letter, dated July 18, 2011, from Richard A. (Tony) Bennett, Chairman, 

Texas Forest Industries Council, to committee and subcommittee leadership, submitted by Mr. Griffith ........................................................................... 93 

Letter, dated July 15, 2011, from Joseph J. Croce, Director of Environmental 

Health, Safety and Security, Virginia Manufacturers Association, to committee and subcommittee leadership, submitted by Mr. Griffith ..................... 95 

Letter, dated July 26, 2011, from Jeffrey G. Landin, President, Wisconsin 

Paper Council, to committee and subcommittee leadership, submitted by 

Mr. Griffith ........................................................................................................... 97 

Study, dated September 2011, titled ‘‘Economic Impact of Pending Air Regulations on the U.S. Pulp and Paper Industry,’’ by the American Forest & 

Paper Association, submitted by Mr. Griffith .................................................... 101 

Letter, dated May 6, 2011, from Virginia Aulin, Vice President, Corporate 

Affairs, Boise, Inc., to Mr. Walden, submitted by Mr. Walden ........................ 158 

Letter, dated July 15, 2011, from Joe Gonyea III, Timber Products Company, 

to Mr. Walden, submitted by Mr. Walden ......................................................... 159 

Letter, dated July 18, 2011, from Grady Mulbery, Vice President, Composite 

Manufacturing, Roseburg Forest Products, to Mr. Walden, submitted by 

Mr. Walden ........................................................................................................... 161 

Analysis, ‘‘Overview Impact of Existing and Proposed Regulatory Standards 

on Domestic Dement Capacity,’’ dated January 2011, by the Portland Cement Association, submitted by Mr. Sullivan .................................................... 271 

(1) 

H.R. 2250, THE EPA REGULATORY RELIEF ACT 

OF 2011, AND H.R. 2681, THE CEMENT SECTOR REGULATORY RELIEF ACT OF 2011 

THURSDAY, SEPTEMBER 8, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENERGY AND POWER, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:34 a.m., in room 

2322 of the Rayburn House Office Building, Hon. Ed Whitfield 

(chairman of the subcommittee) presiding. 

Members present: Representatives Whitfield, Sullivan, Shimkus, 

Walden, Terry, Burgess, Bilbray, Scalise, McMorris Rodgers, Olson, 

McKinley, Gardner, Pompeo, Griffith, Barton, Rush, Inslee, Castor, 

Dingell, Markey, Green, Doyle, and Waxman (ex officio). 

Staff present: Charlotte Baker, Press Secretary; Maryam Brown, 

Chief Counsel, Energy and Power; Allison Busbee, Legislative 

Clerk; Cory Hicks, Policy Coordinator, Energy and Power; Heidi 

King, Chief Economist; Ben Lieberman, Counsel, Energy and 

Power; Mary Neumayr, Senior Energy Counsel, Oversight/Energy; 

Chris Sarley, Policy Coordinator, Environment and Economy; Peter 

Spencer, Professional Staff Member, Oversight; Alison Cassady, 

Democratic Senior Professional Staff Member; Greg Dotson, Democratic Energy and Environment Staff Director; Caitlin Haberman, 

Democratic Policy Analyst; and Alexandra Teitz, Democratic Senior 

Counsel, Energy and Environment. 

Mr. WHITFIELD. I would like to call this hearing to order this 

morning. This is a hearing on two pieces of legislation: H.R. 2681, 

the Cement Sector Regulatory Relief Act of 2011, and H.R. 2250, 

the EPA Regulatory Relief Act of 2011. 

[The information follows:] 

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OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY 

Mr. WHITFIELD. I would like to commend my colleagues, Mr. Sullivan, who is also the vice chair of this subcommittee, and he is 

sponsoring the cement bill, and then Mr. Morgan Griffith of Virginia is sponsoring the boiler bill, and I want to thank them for 

their work on these two pieces of legislation, and of course, we are 

pleased that Representatives Ross and Butterfield from the full 

committee are joining as cosponsors on this legislation, and we look 

forward to working with them as we move forward. 

Now, some people have characterized these pieces of legislation 

as regulatory rollbacks, and I would say quite the contrary. Both 

the cement and the boiler bills allow, and in fact require, that new 

emissions controls be implemented, but they replace unrealistic 

targets and timetables with achievable ones, and we all know that 

the EPA was acting under duress, a court order, and had to finalize 

these rules much sooner than they had intended to do, and we do 

not believe they had adequate time to consider all aspects of the 

impact of these regulations. 

I would also like to say that tonight President Obama is going 

to be talking to us, and we know that high on his agenda, he is 

looking at ways to create jobs in America, and we just came back 

from our August work period, and it was very clear out in the country that one of the reasons jobs are not being created in America 

today is because of uncertainty, and uncertainty is coming from 

three sources: number one, the health care bill, of which 8,700 

pages of regulations have already been written but it doesn’t go 

into effect until 2014, so no one really knows what impact that is 

going to have on companies; number two, the regulations relating 

to the financial industry, the increase of capital requirements has 

made it more difficult to obtain loans; and then number three, this 

EPA has been so aggressive. I could read the litany of regulations 

but there is great uncertainty out there about these regulations. 

We know they are costly. We know they are costing jobs, and all 

of this is creating obstacles for our opportunities to produce jobs for 

America, and so that is what this is all about, and so I look forward to the testimony of our witnesses. 

[The prepared statement of Mr. Whitfield follows:] 

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Mr. WHITFIELD. At this time I would like to yield my time to Mr. 

Barton. 

Mr. BARTON. How much time do I have, Mr. Chairman? Is that 

2 minutes? Am I supposed to yield to Mr. Sullivan? OK. 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Well, thank you for holding the hearing today on these two 

issues. I support both bills. I am glad we have our Deputy Administrator from the EPA here. She is a very knowledgeable person and 

has interacted in a positive manner with the committee and the 

subcommittee, and we appreciate her being here again today. 

I do think, though, that these bills are necessary. I do think that 

the EPA has issued a plethora of regulations, whether intended or 

not, that have the actual effect of reducing jobs and preventing jobs 

from being created in the American economy. That is not to say 

that there might not be some good that would come out of implementation of these regulations, but I think it is yet to be determined that that good would offset the negative immediate cost in 

terms of economic decline and loss of jobs. 

So I look forward to hearing from our witnesses and I certainly 

look forward to hearing Ms. McCarthy’s testimony. 

With that, I yield the balance of my time to Mr. Sullivan. 

[The prepared statement of Mr. Barton follows:] 

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OPENING STATEMENT OF HON. JOHN SULLIVAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA 

Mr. SULLIVAN. Thank you, Mr. Barton. Thank you, Mr. Chairman. 

Chairman Whitfield, thank you for holding this important hearing today. Both the EPA Regulatory Relief Act and the Cement 

Sector Regulatory Relief Act of 2011 seek to do what we need most, 

and that is to put a stop to the overly burdensome regulations that 

destroy jobs. Instead of a cut-your-nose-off-to-spite-your-face approach, these bills will allow for rules that are both technically and 

economically achievable. 

Specifically, I introduced the Cement MACT legislation to prevent U.S. cement plant shutdowns, which directly result in job loss. 

The President is talking about jobs tonight, and I want to be clear: 

This bill is jobs. If the EPA rules go into effect, nearly 20,000 jobs 

will be lost due to plant closures and inflated construction costs. 

EPA’s current rules threaten to shut down 20 percent of the Nation’s cement manufacturing plants in the next 2 years, sending 

thousands of jobs permanently overseas and driving up cement and 

construction costs across the country. 

Cement is the backbone for the construction of our Nation’s 

buildings, roads, bridges, tunnels and critical water and wastewater treatment infrastructure. For both of these bills, our goal is 

to ensure effective regulation. 

I have four letters I would like to introduce to this committee, 

and they are from the International Brotherhood of Boilermakers, 

Iron Ship Building and Blacksmith Forgers and Helpers, the National Association of Manufacturers, 25 Members of the U.S. Senate, and the U.S. Chamber of Commerce, and I would like to submit these four letters in support of the Cement Sector Regulatory 

Relief Act for the record. 

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Mr. WHITFIELD. Thank you. 

At this time I recognize the ranking member of the full committee, the gentleman from California, Mr. Waxman, for his opening statement. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Cancer, birth defects, brain damage—we have long known that 

toxic air pollutants such as mercury, arsenic, dioxin, lead, and 

PCBs can cause these serious health effects. 

So when Congress passed the Clean Air Act in 1970, we included 

section 112 to address the public health threat posed by hazardous 

air pollutants. EPA was required to regulate substances that even 

at low levels of exposure cause cancer, reproductive disorders, neurological effects, or other serious illnesses. 

Unfortunately, over the next 20 years, it became clear that the 

1970 law was not working. Out of the scores of known toxic air pollutants, only eight pollutants were listed as hazardous and only 

seven were regulated. In 1986, industry reported that more than 

70 percent of pollution sources were using no pollution controls. 

In 1990, we fixed section 112 on a bipartisan basis to deliver the 

public health protection the American people wanted. The new program was designed to make EPA’s job simpler. Instead of requiring 

laborious pollutant-by-pollutant risk assessments, Congress listed 

187 toxic air pollutants and directed EPA to set standards for categories of sources. The standards have to require use of the maximum achievable control technology. For existing sources, this 

means that the emission standard has to be at least as clean as 

the average emissions levels achieved by the best performing 12 

percent of similar sources. 

This approach has worked well. EPA will testify today that industrial emissions of carcinogens and other highly toxic chemicals 

have been reduced by 1.7 million tons each year through actions 

taken by more than 170 industries. EPA has reduced pollution 

from dozens of industrial sectors, from boat manufacturing to fabric 

printing, from lead smelters to pesticide manufacturing. 

But a few large source categories still have not been required to 

control toxic air pollution due to delays and litigation. These include utilities, industrial boilers and cement plants. EPA’s efforts 

to finally reduce toxic air pollution from these sources are long, 

long overdue. 

The bills we consider today would block and indefinitely delay 

EPA’s efforts to make good on a 40-year-old promise to the American people that toxic air pollutants will be controlled. They would 

also rewrite the MACT standards once again, this time to weaken 

the protections and set up new hurdles for EPA rules. We are told 

that these bills simply give EPA the time they requested to get the 

rules right. That is nonsense. 

EPA asked the court to allow them until April 2012 to issue the 

boiler rules. The boiler bill nullifies the existing rules and prohibits 

EPA from issuing new rules before March 2013 or later, assuming 

enactment this year. The bill also allows an indefinite delay after 

34 

that by eliminating the Clean Air Act deadlines for rulemaking and 

setting no new deadlines. The cement bill contains the same nullification of existing rules, prohibition on rulemaking, and indefinite delay of new rules, even though the rules are already final and 

in effect, and EPA never asked for additional time for those rules. 

On top of these delays, the bills would delay air quality improvements for at least 5 years after any rules were issued and potentially far longer. In fact there is no limit in the bill for how long 

sources may have to comply. That means that infants and children 

in our communities will continue to be exposed to mercury and carcinogens from these facilities until 2018 or later. 

And we are told that these bills provide direction and support for 

EPA to add flexibility and make the rules achievable. In fact, the 

language is ambiguous, and an argument could be made that section 5 of the bills overrides the existing criteria for setting air toxic 

standards. If so, those changes are dramatic. Instead of setting numeric emissions limits, EPA could be required to set only work 

practice standards, and EPA might be prohibited from setting a 

standard if it couldn’t be met by every existing source, even if all 

of the better-performing similar sources were meeting it. At a minimum, these changes guarantee substantial additional uncertainty 

and litigation, which benefits only the lawyers. 

Forty years ago, Congress determined that we must control toxic 

air pollution to protect Americans from cancer, neurological effects 

and birth defects. Today, EPA is working to finally implement that 

directive for some of the largest uncontrolled sources of mercury 

and other toxic air pollution. These bills would stop those efforts, 

allowing Americans to continue to breathe toxics for years or decades. That would be shameful. 

I hear my Republican colleagues say jobs, jobs, jobs. Let me repeat: birth defects, cancer, neurological diseases, unborn babies 

that will be killed from mercury, newly born babies that will be 

poisoned by these toxic air pollutants. If that is the legacy the Republicans want, it is a legacy I want no part of. Yield back my 

time. 

Mr. WHITFIELD. At this time I recognize the gentleman from Virginia, Mr. Griffith, for a 5-minute opening statement. 

Mr. GRIFFITH. Thank you, Mr. Chairman. I would like to yield 

1 minute of my time to the gentlelady from Washington, Ms. 

McMorris Rodgers. 

OPENING STATEMENT OF HON. CATHY MCMORRIS RODGERS, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

WASHINGTON 

Ms. MCMORRIS RODGERS. Thank you for yielding. 

Like my colleagues, I have spent the last 5 weeks holding town 

halls, roundtable discussions, talking with small business owners, 

farmers, manufacturers, technology companies, and my take away 

is, people are quite concerned that our country is headed in the 

wrong direction, and whether I was up in Colville or down in 

Clarkston, the message is clear: the Federal Government is making 

it harder to create jobs in America. The frustration and uncertainty 

caused by the Federal Government’s regulatory overreach is smothering any possible economic recovery. 

35 

According to a study conducted by the Council of Industrial Boiler Owners, if left final, every billion dollars, $1 billion spent on 

mandatory upgrades to comply with the boiler MACT rules puts 

16,000 jobs at risk. The full cost of these rules alone could be $14.5 

billion. That is 224,000 jobs at risk. 

In eastern Washington, one of the key employers, Ponderay 

Newsprint, will be forced to spend $8 million. That is money that 

they won’t spend hiring new workers. 

I thank the chairman for moving forward to these bills and look 

forward to the testimony. 

Mr. GRIFFITH. Claiming back my time, Mr. Chairman, I would 

also yield 1 minute to the gentleman from Texas, Mr. Olson. 

OPENING STATEMENT OF HON. PETE OLSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. OLSON. I thank my colleague, and thank you, Mr. Chairman, 

for holding this hearing to discuss two important pieces of legislation that would help rein in the Environmental Protection Agency 

that is out of control and out of touch with reality. 

The EPA continues to move at full speed ahead with their politically motivated agenda to eliminate affordable and reliable fuel for 

our Nation’s energy portfolio. The overly burdensome regulations 

that we will discuss today truly reveal this Administration’s disregard for our jobs crisis. Left unchecked, these EPA regulations 

will result in more businesses closing their doors and even more 

American jobs shipped overseas. 

This is why I am an original cosponsor of one of the bills before 

us, H.R. 2250, the EPA Regulatory Relief Act of 2011. This bill 

would give EPA the time that they requested to correct the seriously flawed boiler MACT rules and keep American jobs here at 

home. 

I thank my colleague for the time and yield back. 

[The prepared statement of Mr. Olson follows:] 

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OPENING STATEMENT OF HON. H. MORGAN GRIFFITH, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH 

OF VIRGINIA 

Mr. GRIFFITH. Claiming back my time, Mr. Chairman, I would 

like to introduce into the record the following letters in support of 

H.R. 2250, the EPA Regulatory Relief Act of 2011, and I have my 

copy here but I believe staff has a copy for you, Mr. Chairman, and 

if I might, Mr. Chairman, go over those letters. We have a list of 

31 different letters in the packet. The first one is the National Association of Manufacturers, which has 292 signatories from different industry groups, the American Chemistry Council, the American Forest and Paper Association—these are separate letters I am 

going over now—the American Forest and Paper Association, 

American Wood Council, Americans for Prosperity, American Home 

Furnishing Alliance, American Municipal Power Inc., Ohio Municipal Electric Association, Association of American Railroads, Biomass Power Association, Boise Inc. a Business Roundtable statement on the introduction of the bill, Chamber of Commerce, Corn 

Refiners Association, Council of Industrial Boiler Owners, Domtar, 

the Florida State Council, the Florida Sugar Industry, Industrial 

Energy Consumers of America, the International Brotherhood of 

Electrical Workers, International Paper, Louisiana Pacific Corporation, MeadWestvaco Corporation, National Association of Manufacturers, National Construction Alliance, National Federation of 

Independent Businesses, National Oilseed Processors Association, 

National Solid Wastes Management Association, Society of Chemical Manufacturers and Affiliates, South Carolina Manufacturers 

Alliance, Texas Forest Industries Council, the Virginia Manufacturers Association and the Wisconsin Paper Council. 

Mr. Chairman, may those be introduced into the record? 

Mr. WHITFIELD. Without objection. 

[The information follows:] 

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Mr. GRIFFITH. Further, Mr. Chairman, I would like to introduce 

into the record a September 2011 study entitled ‘‘The Economic Impact of Pending Air Regulations on the U.S. Pulp and Paper Industry.’’ May that be introduced into the record, Mr. Chairman? 

Mr. WHITFIELD. Without objection. 

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Mr. GRIFFITH. Mr. Chairman, all of these groups are concerned 

because of jobs. There is no question about that. And in fact, the 

study that I just put in shows that a threat that the bills if not 

enacted, boiler MACT threatens 20,000 jobs, 18 percent of the industry and roughly 36 pulp and paper mills. As you know, my district includes pulp and paper mills, chemical processors. We have 

employees who work at cement factories. 

These are extremely important bills. The EPA has gotten to a 

point where they are killing jobs, whether they mean to or not. 

They may not see that as a concern, but to the American people, 

it is a great concern. 

In regard to the health concerns, Mr. Chairman, we are not unsympathetic to health concerns but we would like to see evidence 

that actually shows that these regulations would in fact, not extrapolated theories or models, but would in fact cause the problems 

that the previous gentleman referenced, and then there is the concern that I am always raising and in fact had a little amendment 

in that many of my colleagues on the other side agreed to that 

would actually ask for a study of what the impacts are of the pollution coming from overseas in the air stream to the United States 

of America and in part because we have put so many regulations 

on our businesses, many of those jobs have moved to countries 

where the regulations are nowhere near what we have. 

Thank you, Mr. Chairman, and I appreciate the time. 

Mr. WHITFIELD. Mr. Rush is on his way here. His plane was delayed, and when he arrives, we will give him an opportunity to 

make an opening statement, but at this time I would like to proceed with the panel. 

On our first panel, we have the Honorable Gina McCarthy, who 

is the Assistant Administrator, Office of Air and Radiation, U.S. 

Environmental Protection Agency. Ms. McCarthy, we welcome you 

here today. I would like to say that John Shimkus and I do appreciate your taking time to have a conference call with us relating 

to some specific problems of the Prairie State plant, and we thank 

you for working with us on that important project. 

Now, I would also point out something else to you. On Wednesday, August 24, over 2 weeks ago, we talked to EPA about this 

hearing today, and you all had plenty of advance notice about this 

hearing. We also accommodated the request that EPA would be the 

sole witness on the first panel of this hearing. The two pieces of 

legislation that we are considering today are a mere 15 pages total 

so there is not that much to prepare for, and our committee has 

expressed, requested and required that witnesses’ testimony be 

submitted 2 working days in advance of the hearing to give us an 

opportunity to review it completely and make these hearings more 

meaningful, and we received your testimony last night at 7:00, and 

this really is not acceptable. It does not allow us the time to prepare, and I hope that you would talk to your staff or whoever is 

responsible for this to make sure in the future when we have these 

hearings that we are able to get the testimony at least 2 days in 

advance. 

So at this time, Ms. McCarthy, I would like to recognize you for 

your opening statement. 

130 

STATEMENT OF REGINA MCCARTHY, ASSISTANT ADMINISTRATOR, OFFICE OF AIR AND RADIATION, ENVIRONMENTAL 

PROTECTION AGENCY 

Ms. MCCARTHY. Thank you, Chairman Whitfield. 

First of all, you are more than welcome for the work on Prairie 

State. Thank you, and thank Congressman Shimkus for bringing 

that to my attention. It worked out very well, I think for the environment and the company, so thank you so much. 

And let me apologize for the tardiness of my testimony. Regardless of who is responsible, it is my responsibility to see that we 

meet the needs of the committee, and I will take—my personal attention will go to that in the future, so I apologize for that. 

So Chairman Whitfield and members of the subcommittee, first 

of all, thank you for inviting me here to testify. The Administration 

has major concerns with these two bills. They are a clear attempt 

to roll back public health protections of the kind that have been in 

place as part of the Clean Air Act for decades. For 40 years, the 

Clean Air Act has made steady progress in reducing air pollution. 

In the last year alone, programs established since 1990 are estimated to have reduced premature mortality risks equivalent to saving over 160,000 lives. They have also enhanced productivity by 

preventing 13 million lost workdays and kept kids healthy and in 

school, avoiding 3.2 million lost school days. 

History has shown repeatedly that we can clean up pollution, 

create jobs and grow our economy. Since 1970, key air pollutants 

have decreased more than 60 percent while our economy has grown 

by over 200 percent. Every dollar we spend cleaning up the air has 

given us over $30 in benefits. 

EPA standards to limit air toxic emissions from boilers, incinerators and cement kilns continue that success story. Today’s bills, 

which directly attack the core of the Clean Air Act, raise a number 

of serious issues. Most importantly they would indefinitely delay 

the important health benefits from national limits of air toxics, 

toxic pollution including mercury, which can result in damage to 

developing nervous systems of unborn babies and young children, 

impairing children’s ability to think and to learn. These bills do not 

simply give EPA more time to finalize more rules. Rather, they 

would prohibit EPA from finalizing replacement rules prior to at 

least as early as March 2013 at best. It would prohibit EPA from 

requiring compliance until at least 5 years after the rules are finalized and it would fail to set any new deadlines for either EPA action or for compliance. Combined, these provisions make it clear 

that the authors have no time in mind for when these delayed public health benefits would be delivered to American families. 

Just to be clear, the timeline in the boiler bill is not what EPA 

told the court we needed. We asked for an April 2012 deadline, not 

a prohibition on finalizing standards prior to March 2013. We are 

currently reconsidering the boiler standards for major sources. We 

have stayed those standards. We have used the administrative 

process to do that. We intend to finalize the reconsideration process 

by the end of April 2012. 

Both the boiler and cement bills would indefinitely delay important public health protections and would create minimum delays 

lasting at least 3 years for the boiler standards and almost 5 years 

131 

for the cement standards. As a result, combined, even minimum 

delays in these bills would cause tens of thousands of additional 

premature deaths, tens of thousands of additional heart attacks, 

and hundreds of thousands of additional asthma attacks that 

would be avoided under the existing boiler and cement standards 

that we have either promulgated or will promulgate in the very 

near future. 

We also have serious concerns with section 5 of each of these 

bills. The language is unclear but we certainly anticipate that some 

in industry would argue that this section would substantially 

weaken the act by overriding the current provisions for setting 

minimum MACT standards. So the mere assertion that EPA regulations are job killers should not justify sacrificing these significant 

public health benefits. 

Some studies have found that the Clean Air Act actually increased the size of the U.S. economy because of lower demand for 

health care and a healthier, more productive workforce. Another 

study found a small net gain in jobs due to additional environmental spending in the four industries studied. EPA standards 

under the Clean Air Act will encourage investments in labor-intensive upgrades that can put current unemployed Americans back to 

work. 

These standards at issue today will provide public health benefits without imposing hardship on American economy or jeopardizing American job creation. It is terrifically misleading to say that 

implementation of the Clean Air Act costs jobs. It does not. Families should never have to choose between a job and healthy air. 

They are entitled to both. And as the President recently said, the 

Administration would continue to vigorously oppose efforts to 

weaken EPA’s authority under the Clean Air Act or dismantle the 

progress we have made. 

I look forward to taking your questions, and thank you for the 

opportunity. 

[The prepared statement of Ms. McCarthy follows:] 

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Mr. WHITFIELD. Thank you, Ms. McCarthy. 

Of these five rules, of course EPA itself went to the courts and 

asked for additional time for three of them, and all this legislation 

does, it gives you 15 months to re-propose and finalize these rules, 

so it is not like we are saying never implement them. 

But let me ask you a question. In your time at EPA, has there 

ever been a time when a proposed regulation that the cost exceeded 

the benefits that you are aware of? 

Ms. MCCARTHY. In hindsight, I do not know of one, no. And you 

asked me about the exact cost, the cost as it is born out? 

Mr. WHITFIELD. Yes, and as far as you know, you are not aware 

of one? 

Ms. MCCARTHY. The bills that I am familiar with have proven to 

be much less expensive than anticipated and the benefits have 

been significant. 

Mr. WHITFIELD. Now, you made the comment that these regulations do not cost jobs, and I maybe missed part of it, but even your 

own estimate on the cement rule says that it will cost up to 1,500 

jobs. 

Ms. MCCARTHY. Well, let me clarify the job numbers because 

what we see is that because of the sensitivities of the modeling, we 

both project that there could be some losses and some gains but we 

look for the central estimate of what we actually anticipate will be 

the end result. 

Mr. WHITFIELD. How do you calculate the cost of a job lost? 

Ms. MCCARTHY. There are actually peer-reviewed models and 

standards that we use and we go through the interagency process 

to ensure—— 

Mr. WHITFIELD. Do you know what the—— 

Ms. MCCARTHY [continuing]. With the executive—— 

Mr. WHITFIELD. Do you know what the figure is? 

Ms. MCCARTHY. I do not know, actually. 

Mr. WHITFIELD. Do you consider the cost of lost health benefits 

created by job loss? 

Ms. MCCARTHY. I do not know the answer to that question. What 

I do know, Mr. Chairman, is we do a complete regulatory impact 

analysis that looks at direct economic impacts in the immediate future. In the immediate past, this Administration has really stepped 

up in terms of doing additional job analysis. 

Mr. WHITFIELD. Would you all sit down with us and go over with 

us the models that you use and the process that you use in determining cost and benefits? 

Ms. MCCARTHY. I will. All of the processes that we use are peerreviewed. They are open to the public. They have been identified 

by the Administration as those that are most appropriate, and they 

are available to everyone to take a look at. 

Mr. WHITFIELD. Now, when you make these comments that we 

are going to prevent 18,110 cases of asthma in the future, that 

really sounds pretty subjective to me, and to most people. So I 

think there are some legitimate concerns here about cost-benefit 

analysis and particularly when you have said yourself since you 

have been at EPA, the costs have never exceeded the benefits. 

On the boiler MACT, for example, the industry itself says that it is going to be $14.4 billion in new costs, that there are at risk 

140 

224,000 jobs. On the cement, they say capital costs $3.4 billion plus 

4 billion additional capital costs for the incinerator rule, threaten 

shutdown of 18 plants by 2013 and four additional plants by 2015. 

The two rules combined directly threaten up to 4,000 jobs by 2015 

and indirectly 12,000 jobs. And all the literature that I have ever 

read talks about when people lose jobs, it has an impact on the 

health care of them and their families, and as far as I know, EPA 

has never considered the cost of additional health care required because someone loses a job, and I don’t understand how that is possible, why that is not a legitimate cost. 

Now, I know that in California and Oregon under this new cement rule, EPA has recognized that two of these plants cannot 

meet the new cement MACT standards even with the most stateof-the-art pollution controls, and because of the type of limestone 

in those areas, and I know that EPA has been asked to create a 

subcategory for these two plants so that the rules are at least technically achievable, and EPA has refused. Now, why would EPA 

refuse to create a subcategory for these two plants that cannot in 

any way meet the standards? 

Ms. MCCARTHY. Mr. Whitfield, I am happy to spend as much 

time as you would like to go through the modeling that we do and 

the analysis we do for costs as well as benefits, but I think it is 

appropriate to talk about both costs and benefits and to look at 

whether or not the benefits far exceed the costs, which in these 

rules they do. 

Secondly, in terms of the Portland Cement, there were a couple 

of facilities that we actually worked with and we continue to work 

with closely. We have identified that there are significant opportunities for early reductions of mercury for those technologies with 

currently available technologies, and they are now working with us 

in terms of what other technology advances may be available to 

them so that we can ensure that they will be in compliance and 

we can make sure that that rule for them becomes achievable. So 

we are working with those two companies. There are many reasons 

why we look at subcategorization but the Clean Air Act does limit 

our ability to look at subcategorization and it does in order to make 

sure that we are advancing the right technologies moving forward 

where we are dealing with the most toxic pollution that we have 

and the impacts associated. 

Mr. WHITFIELD. I would just make one comment. My time is expired. But you have talked about mercury, Mr. Waxman has talked 

about mercury, and it is my understanding the benefits of the reduction in mercury was not even included in the benefits. The benefits come from the reduction of particulate matter. 

Ms. MCCARTHY. The benefits would—the benefits to mercury 

were not calculated. The benefits to particulate matter so outweighed the costs that it wasn’t worth the effort, frankly. 

Mr. WHITFIELD. OK. Mr. Rush, sorry your plane was late. We are 

delighted you are here. Would you like to give your opening statement now? 

Mr. RUSH. Yes, Mr. Chairman, since the line of questioning that 

you were traveling I kind of don’t necessarily agree with, so I think 

I will give my opening statement. I want to thank you for your inVerDate Aug 31 2005 12:55 Aug 28, 2012 Jkt 037690 PO 00000 Frm 00148 Fmt 6633 Sfmt 6633 F:\112-08~2\112-82~1 WAYNE
141 

dulgence, and I want to thank you for allowing me to have the 

opening statement and my questions. 

Mr. WHITFIELD. The gentleman is recognized for 5 minutes. 

OPENING STATEMENT OF BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. Mr. Chairman, today we are holding a hearing on two 

bills, H.R. 2250, the so-called EPA Regulatory Relief Act of 2011, 

and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011. 

Mr. Chairman, in the 1990 Clean Air Act Amendments, Congress 

directed the EPA to take a technologically based approach to reduce hazardous air pollutants, or HAPs, which are pollutants 

known or suspected of causing cancer and other serious health effects such as reproductive and birth defects, neurological effects 

and adverse environmental impacts. For example, mercury is a 

hazardous air pollutant of particular concern because it is emitted 

into the air and then deposited into bodies of water where it contaminates fish and other aquatic life. Research shows that pregnant and nursing women, women who may become pregnant and 

young children who eat large amounts of fish that is mercury-contaminated are especially at risk because mercury damages the developing brain and reduces IQ and the ability to learn. 

In order to address the entire suite of hazardous air toxins relatively quickly and using readily available technology, Section 112 

of the Clean Air Act requires EPA to develop regulations for distinct source categories such as power plants and cement kiln that 

set specific emission limits based on emission levels already being 

achieved by other facilities. These regulations, or MACT standards, 

require that for existing sources, the emission standard must be at 

least as stringent as the average emissions achieved by the best 

performing 12 percent of sources in that source category. 

As I understand it, the rules targeted by these two pieces of legislation are already years behind of when they were supposed to 

have been finalized, but yet these two bills, H.R. 2250 and H.R. 

2681, would further delay these rules and push action on them further down the road even to the point of indefinitely. Besides postponing issuance and implementation of these rules indefinitely, 

these two bills would also undermine EPA’s authority to require 

application of the best performing emissions control technology 

while also weakening the more stringent monitoring, reporting and 

pollution control requirements required in the Clean Air Act under 

Section 129. 

Mr. Chairman, for many constituents paying attention to the action of this committee and this Congress, it will appear that the intent of these two pieces of legislation is not really to delay these 

rules but to kill them off altogether to the benefit of some in the 

industry and to the detriment of the American public as a whole. 

So Mr. Chairman, I am waiting to hear some testimony from all 

the panelists today because as of yet, it is still unclear why Congress should force the EPA once again to halt or delay implementation of rules that would protect the public health when everyone 

including industry knows that these regulations were coming down 

the pike for almost a decade now. 

142 

Mr. Chairman, that concludes my opening statement, and I will 

now have my 5 minutes of questioning. 

Mr. WHITFIELD. The gentleman is recognized for 5 minutes. 

Mr. RUSH. Ms. McCarthy, thank you so very much for being here 

once again. You have a really tough job before this subcommittee, 

and I empathize with you. You have been a regular here on the 

witness panel for many hearings, and your expertise and your honesty with this subcommittee is commendable. 

There seems to be a misinformation campaign going on around 

precisely when these rules were scheduled to be issued and implemented and when EPA actually promulgated them. For the record, 

can you clear up this issue once and for all and provide a timeline 

for when EPA was initially scheduled to act on these rules by law 

and when EPA actually did issue these rules. Were there regulations issued in secret so as to surprise industry in order to knock 

them off guard, knock them off their game and then you come in, 

the EPA, as a thief in the night with a bunch of rules and regulations that would have detrimentally affected industry, or did EPA 

take into account any of the input from industry concerning costs 

or other factors before reissuing these new rules? 

Ms. MCCARTHY. I am happy to clarify. I always appreciate the 

respect with which we work with one another, so it is my honor 

to be here and answer these questions. 

I would just clarify that the Administration actually promulgated 

the rules associated with Portland Cement in August of 2010. That 

means we can enjoy significant reductions in toxic pollution as 

early as August of 2013. Now, this rule would delay those benefits 

for a minimum of 5 years. It will push out both the timeline. It 

would actually vacate those rules, require us to propose them, set 

a timeline far in advance that is almost close to the compliance 

timeline for when we might actually promulgate those rules, and 

there is no sense of what the compliance timeline might be for 

those. In terms of the boiler MACT rules and the incinerator rules, 

those rules were finalized in February of 2011. The agency took the 

unusual administrative step to actually stay those rules. We announced that in May. We are on target to re-propose those rules 

in October and finalize them in April, April of 2012, so we are 

going to enjoy the reductions in toxic pollution from those rules as 

early as 2015. Again, this bill, these bills would push that benefit 

and those benefits out to at least 3 more years and so there is no 

question that this is not the bill or the timeline that EPA was seeking or asked for or is welcoming. 

Mr. RUSH. So was industry made aware, were they at the table 

or did you do this in a backroom with no input from industry? 

Ms. MCCARTHY. Unfortunately, these are a series of rules that 

were tried before and brought to court. They are rules that have 

been long overdue. The 1990 Clean Air Act expected them to be 

done in 2000, and here we are in 2011 continuing to debate just 

the timeline. And so I would—these went through normal public 

comment and notice. We have had considerable discussion. The 

boiler MACT rules will go through another public notice and comment process but we can get these done, and we can get these done 

without any assistance needed from the legislature using the administrative process. 

143 

Mr. RUSH. So these bills that are before this committee right 

now, these bills would not in any way assist the EPA or the American public in terms of having a set of standards that both industry 

and the EPA agree on and that will benefit the American public 

in terms of having known standard. Is that correct? 

Ms. MCCARTHY. That is correct. We are on target to deliver substantial public health benefits with the Portland Cement rule that’s 

already been finalized. It would vacate that rule entirely. We are 

on target to finalize the boiler rule after public comment next year, 

early next year in April. We did not ask for this. We do not need 

this. It is in the administrative process. We are continuing to use 

administrative remedies to address any concerns associated with 

these rules. And also, the significant concern that the rule doesn’t 

just deal with timing, it does deal with substance. It raises concern 

about what the standards are that we are supposed to achieve, the 

compliance timelines associated with that. It raises significant uncertainty about whether or not we can move this forward and what 

standards would need to be applied. 

Mr. RUSH. Thank you, Mr. Chairman. I yield back the balance 

of my time. 

Mr. WHITFIELD. As this time I recognize the gentleman from 

Texas for 5 minutes for questioning, Mr. Barton. 

Mr. BARTON. Thank you. 

Madam Administrator, in your written testimony you acknowledge some report that specifically mentions pulp and paper, refining, iron and steel and plastic in this report or study shows that 

they can’t find any significant change in employment because of increased spending on environmental issues. Have you driven 

through Ohio or Pennsylvania recently? 

Ms. MCCARTHY. Actually, I have, yes. 

Mr. BARTON. Is there any community you went through that you 

didn’t see a plant that had been shut down? 

Ms. MCCARTHY. I can’t say that I traveled the roads that you are 

talking about but there is no question that there has been significant challenges—— 

Mr. BARTON. So you did—— 

Ms. MCCARTHY [continuing]. In the manufacturing sector. 

Mr. BARTON. You saw plants that were shut down? 

Ms. MCCARTHY. The question is whether or not they are attributable to environmental regulations or to economic issues in general. 

Mr. BARTON. Of the industries that are mentioned specifically in 

your testimony, pulp and paper, refining, iron and steel and plastic, 

are there any of those industries that employment is up as, say, 

compared to 20 years ago? 

Ms. MCCARTHY. I don’t know that answer. 

Mr. BARTON. Oh, you do know the answer. The answer is no. 

Would you have your staff look at employment, let us say, base 

case 1990? Do you want to go back to 1970 and compare it to 2010 

and provide that for the committee? Because in every one of those 

instances, and you know this, employment is not only down, it is 

significantly down, and you know that. You are too smart of a person. So to sit here and tell this subcommittee that we can do all 

these great things in the environment and not have an impact on 

144 

the employment, my good friend here, Mr. Walden from Oregon, 

just told me that the pulp and paper industry in his State is about 

90 percent gone, 90 percent. 

One of the rules that we are looking at is cement. I have got 

three cements plants in my Congressional district. I just met with 

one of the companies during the August break. Their business is 

40 percent down, 40 percent. They are shutting one kiln, and this 

is just one company. The cement rules that would be implemented 

if we don’t move these bills cost more to implement than the entire 

profit of the entire industry, and you don’t think that is going to 

have an impact on jobs? 

Now, on the other hand, the health benefits, my good friend, Mr. 

Waxman, talked about all the potential negative impacts of mercury and some of these other pollutants, and those are real. Mercury is a poison. Mercury is a pollutant. But because of all the 

things that we have done over the past 40 years, the number of 

birth defects because of mercury is, I would think, significantly 

down. Now, I don’t know that but that is my assumption. Do you 

know how many birth defects in the last 10 years have been as a 

consequence of mercury? Are there any facts on that? 

Ms. MCCARTHY. I certainly could get back to you, Congressman, 

but what we tend to look at is what the status of the industry is 

now and what impact our rule might have on that industry moving 

forward. 

Mr. BARTON. And I want to stipulate that I think you and Mrs. 

Jackson are people of good character and integrity and you are 

doing the best job that you can in your agency, but over and over 

and over again we get these not really science-based facts to justify 

these rules, and if we have a problem with mercury, it would show 

up in birth defects and premature deaths and you could go to the 

medical records and prove it and justify it, but that is not the case. 

These are all probabilistic models of what might happen, not what 

is happening. Do you understand what I am—you know, we need— 

there is not a member on either side of the aisle of this committee 

or this subcommittee, if we have a problem, we will address it, but 

let us at least be able to actually identify the health problem and 

because of the successes in the Clean Air Act and other environmental bills in the past, we don’t have—those numbers are not 

there. 

And my time is expired by 40 seconds. 

Mr. WHITFIELD. Thank you. 

At this time I will recognize the gentleman from California, Mr. 

Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Ms. McCarthy, if your regulations were not science-based, would 

they stand up in court for 1 minute? 

Ms. MCCARTHY. No. 

Mr. WAXMAN. You must base your regulations on the science, 

and you have to get your figures on the impacts based on a peerreview process. Is that correct? 

Ms. MCCARTHY. That is correct. 

Mr. WAXMAN. Now, let me just say to you and everybody else on 

this committee, the statements I have heard members make and 

the numbers they have thrown out have not been scrutinized by 

145 

anybody except they have been given to the members by the industry or they made them up out of whole cloth. I would like to see 

some of those figures scrutinized carefully. 

But Mr. Barton talked about all these plants that are now closed. 

Your regulations have not even gone into effect. They are closed because of the recession. They are closed because of, my Republican 

colleagues insist, the deficit, which we inherited for the most part 

from the Bush Administration. We also inherited the recession 

from the Bush Administration. Our country is struggling, and to 

say that the environmental rules are responsible, how could that 

be if these rules have not yet been in effect? Can you explain that 

to me? 

Ms. MCCARTHY. In fact, Congressman, for the rules that we are 

talking about today for mercury, there is no national standard in 

these sectors. These are the largest sources of mercury emissions 

from stationary facilities and yet there are no national standards 

to date. So I don’t think you can attribute standards in the future 

that this bill would make potentially way in the future for the closures that you are seeing today. 

Mr. WAXMAN. Well, Mr. Barton said that the cost of compliance 

would be more than the entire profit of the whole industry. I don’t 

know where he got that figure, but do you have any idea of that 

could be accurate? 

Ms. MCCARTHY. I can give you the figures by sector of what we 

believe the costs are associated with this bill. The costs for the—— 

Mr. WAXMAN. Well, if you gave us those costs, would that wipe 

out the profits that the industries have and they would all have to 

close as a result? 

Ms. MCCARTHY. In our assessment, we do not believe there 

would be broad closures as a result of any of these rules. We believe there would be job growth. We believe that they are manageable, that they are cost-effective and the technology is available to 

be installed. 

Mr. WAXMAN. Mr. Barton just said, well, we have done a lot of 

things to lower birth defects because of mercury, and he asked you 

whether that is accurate or not. Now, whether it is accurate or not, 

it sounds like we are ready to celebrate fewer birth defects, not trying to reduce birth defects even more. I don’t ask that as a question, I just ask it as a statement of incredulity. 

Proponents of these bills suggest they are simply giving the EPA 

the time it requested to get the rules right and provide some additional flexibilities to reduce the burdens. I would like to get your 

views on this. Could you explain what the boiler bill that has been 

introduced does to the timing of the boiler rules that you are proposing? 

Ms. MCCARTHY. Yes, the timing of these rules in terms of the 

boiler rules, as I indicated, we intend to finalize them in April. 

That means they will be in effect and we will be achieving these 

reductions in 3 years. This rule would at the very earliest only 

allow us to finalize those rules almost a full year later, which 

would delay compliance considerably, and these rules would also 

call into question and add uncertainty about how we establish the 

standards for these rules, and in fact, it would take away any 

timeline for compliance. 

146 

Mr. WAXMAN. In fact, the bill eliminates any deadline for action, 

allowing indefinite delay. That is fundamentally different from requesting a specific limited extension of time. But this is not all the 

bills do. Section 5 of both bills may complete change the criteria 

Congress established in 1990 for how EPA must set limits for air 

toxics. I say ‘‘may’’ because the language appears to be ambiguous. 

Ms. McCarthy, what is the legal effect of this language in EPA’s 

view? 

Ms. MCCARTHY. Well, we are clearly concerned that it would 

raise legal uncertainty. We are concerned that industry would 

argue that these provisions modify or supersede existing Clean Air 

Act provisions that have governed these toxic standards since 1990. 

In particular, we anticipate that industry would argue that EPA 

would be required to set standards below the current MACT floor 

and to use a different process for setting that standard, one that 

identifies the least burden option. I don’t even know who that burden would be assessed for. Would it be the regulated industry or 

the breathing public. 

Mr. WAXMAN. In the case of the bill, it says require the least burdensome regulations including work practice standards. Current 

law allows work practice standards only if the Administrator decides a numeric emissions is not feasible. Maybe you can help us 

to make heads and tail of this. If the new language does not trump 

the current law, would it have any effect? In other words, in the 

boiler rule, is there a situation where you can determine a numeric 

standard wasn’t feasible but still refuse to work practice standards? 

Ms. MCCARTHY. No. In fact, between proposal and final, we made 

a determination on the basis of comments that there were boilers 

where limits were not feasibly achieved and we have gone to work 

practice standards. 

Mr. WAXMAN. And if it does trump the current law, would EPA 

be able to set numeric emissions limits for any pollutants from any 

boilers? 

Ms. MCCARTHY. It is unclear. 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Mr. WHITFIELD. At this time I recognize the gentleman from 

Oklahoma, Mr. Sullivan, for 5 minutes. 

Mr. SULLIVAN. Thank you, Mr. Chairman. 

Ms. McCarthy, I disagree with your statement, with your testimony that H.R. 2681 halts Clean Air Act achievements. H.R. 2681 

does not halt regulation of cement facilities. It does take the policy 

position that EPA is regulating too much, too fast and that we need 

commonsense rules that protect our communities including the jobs 

they depend upon. The cement sector has expressed major concerns 

with the workability and the timeline for implementing EPA’s recent cement MACT and related rules affecting cement kilns. Would 

you agree there are legitimate concerns about technical aspects of 

the cement sector rules? 

Ms. MCCARTHY. I would agree that concerns have been expressed 

but I believe that the final rule is appropriate and necessary and 

can be achieved. 

Mr. SULLIVAN. Would you agree there are legitimate concerns 

with the compliance timeline for implementing the rules? 

147 

Ms. MCCARTHY. I believe that a number of concerns have been 

expressed, but again, I believe the timelines can be achieved. 

Mr. SULLIVAN. EPA stayed the major source boiler MACT and 

the CISWI rule. Why have you not also stayed the cement MACT 

rule as well, given it is so intertwined with the CISWI rule? 

Ms. MCCARTHY. The Portland Cement rule was finalized earlier. 

We do not believe that there was significant concern raised about 

any of the standards or how do achieve those that would warrant 

a stay unlike the boiler rule and the CISWI rule where we identified that there was significant changes between proposal and final 

that deserve to have additional public notice and comment. So that 

is why we have stayed those rules in order to achieve that notice 

and comment process and to finalize those expeditiously. That was 

not the case with Portland Cement and it is highly unusual for the 

agency to stay a rule, and clearly there was no reason to do that 

for Portland Cement. 

Mr. SULLIVAN. How could you not have at least concerns when 

you are going to shut down 18 plants, though? Why couldn’t 

you—— 

Ms. MCCARTHY. I am not exactly sure where those numbers are 

coming from. I do believe in our economic analysis we indicated 

that the industry itself was facing low demand for its products, 

that there was significant challenges associated with that. We certainly in no way attributed closures of 18 facilities to these rules. 

Mr. SULLIVAN. EPA’s cement MACT rule published in September 

2010 affects 158 cement kilns located at cement plants throughout 

the United States. How many of those cement kilns currently meet 

the emission limits and other requirements established by this 

rule? Are there any? 

Ms. MCCARTHY. As far I know, there are new facilities being constructed that will achieve those standards but at this point I do not 

believe there is a single facility that is meeting the standards, most 

notably because most of them have not been under national standards and they have not voluntarily decided to achieve these types 

of reductions. 

Mr. SULLIVAN. Does the Administration have any concerns about 

the potential importing of cement as a result of forcing the idling 

or permanent shuttering of U.S. cement plants? The President has 

stated that new infrastructure projects, roads and bridges, will be 

a big part of his jobs package. Together with EPA’s cement rules, 

are we supposed to build those roads and bridges with Chinese cement? Did you know that China already makes 28 times more cement than the United States? 

Ms. MCCARTHY. We actually did look at this issue when we developed our economic analysis, and it is in the records. We are 

clearly concerned about the health of U.S. industry. There is no 

question about that. We did not believe that this rule would have 

a significant impact in terms of the amount of imported cement 

that would be coming into this country as a result of compliance. 

Mr. SULLIVAN. Thank you. I yield back. 

Mr. WHITFIELD. At this time I would like to recognize the gentleman from Michigan, Mr. Dingell, for 5 minutes. 

Mr. DINGELL. Thank you, Mr. Chairman. I ask unanimous consent to insert into the record my opening statement, which I think 

148 

everybody will find enlightening, well written, entertaining, and I 

believe, valuable from the point of information. 

Mr. WHITFIELD. Thank you for providing it to us. 

[The prepared statement of Mr. Dingell follows:] 

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Mr. DINGELL. I find myself, Mr. Chairman, somewhat distressed 

here. I have heard general conclusions from the witness but I have 

heard nothing in the way of hard statements that relate to what 

it is this committee needs to know and justification for the legislation, and I have not heard any clear statements from the committee or its members about exactly what is the situation with regard to the impact of this legislation or the EPA’s action with regard to the rules, and Madam Administrator, I find that to be 

somewhat distressing. So I will be submitting to you a letter shortly in which I hope we will get some better details on this. For example, are you able to make the categorical statement that none 

of these plants being closed are being closed because of the action 

of EPA? Yes or no. 

Ms. MCCARTHY. I apologize. I think I would indicate that we 

have in the record our economic analysis that looks at these issues. 

Because of the sensitivity of that, it will have different impacts— 

Mr. DINGELL. Simplify my problem by telling me yes, that these 

will be closed because of the action of EPA, or no, they will not be 

closed because of the action of EPA. That is a fairly simple conclusion and I hope that you would be able to just give me yes or no 

on the matter. 

Ms. MCCARTHY. Well, we don’t believe that there will be significant closures as a result. I cannot indicate whether it will impact 

a single closure. 

Mr. DINGELL. You are under the law permitted to choose 

amongst the alternatives. You may not take action on the basis of 

cost alone. But once the question of the most effective way of addressing this from the scientific and health standpoint has been 

reached, you are then permitted to choose that rule or rather that 

approach which costs the least and which is most helpful in terms 

of the industry. Isn’t that so? Yes or no. 

Ms. MCCARTHY. Yes. 

Mr. DINGELL. Now, having said this, have you done that? 

Ms. MCCARTHY. Yes. 

Mr. DINGELL. Where is it stated in the rule, if you please? Submit that for the record to us. And I ask unanimous consent, Mr. 

Chairman, that the record be kept open so we can get that information. 

Mr. WHITFIELD. Without objection. 

Mr. DINGELL. Now, I know that our economy has grown over 200 

percent since the Clean Air Act of 1970, and key pollutants have 

been reduced by 60 percent. I regard that as a good thing, and it 

is an example that we can count on the law to do both of the things 

that the Congress wanted when we wrote the original legislation. 

Now, we find that these things cause us considerable problems 

with regard to business certainty. I note that nobody seems to 

know about the certainty about how these rules are going to be enacted. Has the EPA given thought to establishing the certainty that 

business needs to accomplish its purposes? Yes or no. 

Ms. MCCARTHY. Yes. 

Mr. DINGELL. All right. Now, am I correct that H.R. 2250 would 

vacate the area source rules and require EPA to reissue them? Yes 

or no. 

Ms. MCCARTHY. Yes. 

152 

Mr. DINGELL. Area source boilers are smaller boilers such as 

ones at hospitals and other institutional and commercial facilities. 

What is it that they would have to do under this rule? I would like 

to have that submitted for the record in a clear statement, and I 

ask unanimous consent that the record stay open for that purpose, 

Mr. Chairman. 

Mr. WHITFIELD. Without objection. 

Mr. DINGELL. Now, I also understand that some area sources 

have complained that they will not be able to meet the tune-up requirement by the deadline in your legislation, or rather in your 

regulation, and asked you to reconsider the deadline. Are you reconsidering the deadline? Yes or no. 

Ms. MCCARTHY. We are considering that comment and that petition, yes. 

Mr. DINGELL. How soon will you come to a conclusion on that 

particular point? 

Ms. MCCARTHY. Well, we are clearly trying to do that very shortly. 

Mr. DINGELL. It is very clear that if industry cannot meet the requirements, that you should consider this most seriously. Is that 

not so? 

Ms. MCCARTHY. Yes, and we will be considering it in the proposed rule, taking comment and—— 

Mr. DINGELL. Do you have the ability to move the deadline back 

as a result of the reconsideration process? Yes or no. 

Ms. MCCARTHY. Yes. 

Mr. DINGELL. And you would make the clear statement that you 

would not rule out that action? Is that correct? 

Ms. MCCARTHY. No—that is correct. Sorry. 

Mr. DINGELL. Now, in the testimony, he submitted, Mr. Rubright 

states several times that the regulation is unsustainable. Is that 

statement correct or not? 

Ms. MCCARTHY. No. 

Mr. DINGELL. Should this legislation pass, what do you think the 

timetable should be to issue final rules regarding these industries? 

Ms. MCCARTHY. The timetable that is in the Clean Air Act and 

the timetable that we have agreed to and that we are on. 

Mr. DINGELL. Now, you indicated you think that the regulation 

is unsustainable. Why do you make that statement? Or rather that 

the regulation is sustainable. Why do you make that statement? 

Ms. MCCARTHY. Because we have done a complete cost-benefit 

analysis. We have done the same health-based benefits assessment 

as we have always done, and we believe that the technology is in 

place. We have looked at the most cost-effective alternatives to 

achieve the best benefits that we can. 

Mr. DINGELL. Have you considered his particular concerns and 

the points that he makes or is this a statement with regard to general findings by the agency? 

Ms. MCCARTHY. Both. 

Mr. DINGELL. OK. Now, one last question. Should this legislation 

pass, what do you think the timetable should be to issue the final 

rules regarding these industries? If you will give us a quick answer 

on that and then a more detailed answer for the record, please. 

153 

Ms. MCCARTHY. The bill does not establish a timetable. It sets 

a time before which we cannot issue a rule. 

Mr. DINGELL. What do you suggest should be done with regard 

to that particular matter? 

Ms. MCCARTHY. I think we should continue with the rules under 

the Clean Air Act as it currently exists. 

Mr. DINGELL. Mr. Chairman, you have been most courteous. 

Thank you. 

Mr. WHITFIELD. Thank you. 

At this time I recognize the gentleman from Illinois, Mr. 

Shimkus, for 5 minutes. 

Mr. SHIMKUS. Thank you, Mr. Chairman, and I appreciate Assistant Administrator McCarthy. We have had a good working relationship on some issues, and I think a lot of the issue is time and 

being able to get people to move in a direction. I think the concern 

with a lot of these is, and I will do it based upon the numbers, and 

really it kind of follows up on what Mr. Dingell was talking about, 

is there will be no time and this will be a major change. 

You made a statement on the proposed health benefits. If all the 

major boilers stopped operating, if all the area source boilers were 

shut down, if we stopped waste incineration, based upon your opening statement, the proposed health benefits from the shutting down 

of these would go up. Is that correct? 

Ms. MCCARTHY. Mr. Shimkus, it is not intention to shut—— 

Mr. SHIMKUS. No, I am just—I mean—but that is true based 

upon the opening statement. If we shut down every boiler—— 

Ms. MCCARTHY. It is true that if—— 

Mr. SHIMKUS [continuing]. That your—— 

Ms. MCCARTHY [continuing]. There is no pollution, then—— 

Mr. SHIMKUS. Your proposed health benefits—— 

Ms. MCCARTHY [continuing]. Would go away. 

Mr. SHIMKUS. Thank you. And these are your numbers. There 

are major source boilers, 13,840 major source boilers. Is that correct? 

Ms. MCCARTHY. That is right. 

Mr. SHIMKUS. Do you have an estimation of how many of these 

boilers will meet your proposed rules as we think they will come 

out? 

Ms. MCCARTHY. Actually, there are boilers in a variety of categories that already meet all of these standards. 

Mr. SHIMKUS. I have been told that there are 31 so that 13,809 

major source boilers would not comply. 

Ms. MCCARTHY. The only thing I would remind you, Mr. 

Shimkus, is, we are in a reconsideration process. That rule will be 

re-proposed in October—— 

Mr. SHIMKUS. So would it go up to—would there be 800 then or 

maybe 1,000 of the 13,000? 

Ms. MCCARTHY. As you know, we established the standards because it deals with toxic pollution to try to—— 

Mr. SHIMKUS. You understand my point that I am making—— 

Ms. MCCARTHY [continuing]. Look at the best performing and 

bring the others up. 

Mr. SHIMKUS. OK. You understand the point—— 

Ms. MCCARTHY. I do. 

154 

Mr. SHIMKUS [continuing]. That I am making that of the area 

source boilers, you estimate there are 187,000 boilers. We can’t get 

an idea, even industry has no idea based upon what we envision 

the proposed rules would be that a single one would meet the 

standard. 

Ms. MCCARTHY. On the area source boilers? 

Mr. SHIMKUS. Right. 

Ms. MCCARTHY. The vast majority of those have no emission 

standards. They have work practice standards. Most boilers out in 

commercial and hospital settings actually are natural gas and are 

governed by this. Of the remainder, unless it is a large coal facility, 

it—— 

Mr. SHIMKUS. No, I am talking about, you know, just the area 

source boilers. Let us go to the—— 

Ms. MCCARTHY. It just needs to do a tune-up every 2 years. 

Mr. SHIMKUS. Let us go to the incinerators. You estimate 88 incinerators from your numbers, and do you know the percentage 

that probably meet the standard? 

Ms. MCCARTHY. Three currently meet all standards that I am 

aware of. 

Mr. SHIMKUS. So 85 do not? 

Ms. MCCARTHY. Eighty-five would have to make changes in their 

facilities—— 

Mr. SHIMKUS. And those changes would be a capital expense outlay, and that kind of follows into this whole debate about your job 

calculations, because part of your job calculation is retrofitting 

these facilities. Retrofitting jobs, are they short term, 6 months, 12 

months? How long is a major operating facility those jobs remain? 

I mean, they remain for decades. So that is long-term consideration 

of the length of that. 

My time is rapidly clicking away, and I want to make sure I 

raise this issue on the science-based debate. We have had this in 

my subcommittee hearing, Mr. Chairman, and that the courts give 

deference to the Federal Government when there is a court case 

over any other advocacy in the court case, and the standard of 

proof is very high and it is arbitrary and capricious. So for my colleagues here, part of this debate on reform would be a debate on 

judicial reform in the courts to give the complainants equal standing as the Federal Government when they have litigation. Currently now, the courts assume that the Federal Government is correct and so the plaintiffs have a higher burden, and I think that 

is one of the major reforms that has to be done. I yield back my 

time. 

Mr. WHITFIELD. Thank you. 

At this time I recognize the gentlelady from Florida, Ms. Castor, 

for 5 minutes. 

Ms. CASTOR. Thank you, Mr. Chairman. 

Good morning, Ms. McCarthy. 

Ms. MCCARTHY. Good morning. 

Ms. CASTOR. I think I would like to start by saying how proud 

I am to live in a country that for decades has protected the air that 

all Americans breathe, for decades. And I remember very well as 

a youngster in the 1970s the improvement in air quality in my 

hometown in Florida. I remember smoggy mornings early in the 

155 

1970s, especially during these hot summer months where the air 

was just stifling and we weren’t getting much of a breeze off of the 

Gulf of Mexico, and the air stunk, but over the years it improved. 

It got a lot better. And the health of the community improved. And 

then in 1990, the Congress came back based upon science and everything they had learned and adopted Clean Air Act Amendments, 

and that was over 20 years ago and those Clean Air Act Amendments required EPA to establish emission standards for particular 

sources, and Congress said to the EPA back in 1990, OK, you have 

10 years to adopt standards for these particular sources, so that is 

by the year 2000, right? Eleven years ago. And they gave them a 

few years after the adoption of those regulations for these particular sources to have some basic standards. But it took EPA 

many years. EPA first targeted these particular sources, adopted 

some standards for boilers in 2004. It got caught up in court challenges, and pursuant to a court-ordered deadline EPA finalized 

rules for industrial, commercial and institutional boilers and other 

particular sources of air pollution in February of this year. 

This has a long history, and I think it is time to bring it in for 

a landing rather than continuing to delay it. The Congress gave 

very clear direction in 1990, and we have been grappling with this. 

We understand now the science involving the public health when 

you clean the air and the impact on our families. 

So I am very concerned that the bills at issue today appear to 

be hazardous to the health of the Nation and our economy because 

they delay vital health protections and they create great uncertainty for everyone. So let us look at H.R. 2250 which indefinitely 

delays the rules to reduce toxic air pollution. Based upon the evidence, the rules if finalized as scheduled would provide tremendous 

health benefits to Americans by cutting emissions of pollutants 

linked to a range of serious health effects, developmental disabilities in children, asthma, cancer. EPA estimates that these rules 

will avoid more than 2,600 premature deaths, 4,100 heart attacks 

and 42,000 asthma attacks every year. I don’t know about you all 

but this is an epidemic in our country, the rates of asthma and 

heart disease, and people, we are all part of the solution. And I 

don’t think we can turn a blind eye to this evidence. 

Ms. McCarthy, after the years that EPA has been gathering evidence from all corners, from industry, how would nullifying these 

rules now affect the public health in your opinion? 

Ms. MCCARTHY. It would leave incredible public health benefits 

on the table, benefits that are significantly important to American 

families, and it would do so in clear recognition that for every dollar we spend on these rules, we are going to get $10 to $24 in benefits for people in terms of better health for them and for individuals 

and their families. There is no reason for it. We have administrative processes that we are going through. We are following the 

same notice and comment process that Congress intended. We 

should be allowed to proceed with these rules and to get the public 

health benefits as delayed as they are finally deliver them for the 

American family. 

Ms. CASTOR. And the statutory deadline originally that the Congress directed in 1990 was 2000. 

156 

Ms. MCCARTHY. It was, and I will tell you it would be inexcusable to not deliver these knowing the health benefits, knowing the 

impacts associated with these toxic pollutants and knowing that we 

can do this cost-effectively and actually at the same time increase 

jobs. These are not job-killing bills. These are bills that will require 

investments that will put people back to work and that will grow 

the economy. 

Ms. CASTOR. Thank you very much. 

Mr. WHITFIELD. The gentleman from Oregon is recognized for 5 

minutes, Mr. Walden. 

Mr. WALDEN. I thank the chairman very much and I welcome 

our witness today. I want to make a couple of comments. 

First of all, I would say up front that one of the two cement 

plants that your regulations put great burdens on is in my district, 

Durkee, Oregon, so I would like you to submit for the committee 

within a week or so these specific health issues that you have identified relating to mercury poisoning, asthma and all as it relates to 

Oregon specifically, because you must have them broken down by 

region, I would assume, or by county. 

Ms. MCCARTHY. We certainly look at exposures around facilities. 

Mr. WALDEN. So if you could provide those, it would be most 

helpful. I have got a chart here somewhere that shows the percent 

of mercury deposition that originates outside the United States, 

and I believe that your own data indicate that most of this comes 

from China or foreign sources, most of the mercury coming into the 

United States. Is that accurate? 

Ms. MCCARTHY. It also is emitted by us and comes back at us. 

Mr. WALDEN. Indeed. Now, you said in your testimony or in response to a question that there have been no mercury control 

MACT standards for mercury? 

Ms. MCCARTHY. I said national standards. That is correct. 

Mr. WALDEN. Right, and that nobody had really invested ahead 

of those standards. 

Ms. MCCARTHY. No, I indicated that for the most part the investments weren’t sufficient to get compliance with the standards that 

we have. 

Mr. WALDEN. So in the case of Ash Grove in my district in Durkee, they have spent about, I think it is $20 million. They have 

reduced their emissions by 90 percent, and my information—correct 

me if I am wrong—is there a more advanced technology they can 

use than what they are using today with the carbon injection system? 

Ms. MCCARTHY. Actually, they have been very responsive to the 

needs of the State and working with them and—— 

Mr. WALDEN. No, they would have met the State standards. It 

is your new Federal standards that is causing them the problem 

is my understanding. 

Ms. MCCARTHY. We are working with them on that, yes. 

Mr. WALDEN. So my question, though, is yet to be answered. Is 

there an achievable control technology available today that is better than the one they are implementing? 

Ms. MCCARTHY. I do not know, but they are working on that. 

Mr. WALDEN. Now, I want to know from you because you are 

writing the rules. Because the rules in the Clean Air Act talk about 

157 

achievable control technology, right? And in the committee report 

in 1990 in the Clean Air Act Amendments, the House report itself 

on page 328 of part 1 stated, ‘‘The committee expects MACT to be 

meaningful so that MACT will require substantial reductions in 

emissions from uncontrolled levels. However, MACT is not intended to require unsafe control measures or to drive sources to the 

brink of shutdown.’’ So I guess the question is, if you have got two 

plants because the mercury levels in the limestone next to them exceed these standards you are setting, you may be driving them to 

the brink of shutdown. I mean, they have reduced 90 percent, but 

under your rules proposed, it would be 98.4 percent. 

Ms. MCCARTHY. The facility that you are talking about has made 

substantial investments in technologies—— 

Mr. WALDEN. Yes, they have. 

Ms. MCCARTHY [continuing]. To achieve these mercury reductions. They are continuing to do that. 

Mr. WALDEN. I understand that. 

Ms. MCCARTHY. I have ever reason to believe that the Clean Air 

Act in this instance will behave exactly as history has shown us, 

which is to drive new technologies into the market and to successfully achieve—— 

Mr. WALDEN. And today there is no technology superior to what 

they are using, is there? 

Ms. MCCARTHY. There are technologies that will achieve these. 

The challenge, as you know—— 

Mr. WALDEN. To the 98.4 percent? 

Ms. MCCARTHY. The challenge, as you know, for this particular 

facility is the limestone quarry that they are using and the mercury content there. 

Mr. WALDEN. And I believe also in the conference committee report from the 1990 Clean Air Act, it talked about substituting 

orinol, and it said, ‘‘The substitution of cleaner ore stocks was not 

in any event a feasible basis on which to set emission standards 

where metallic impurity levels are variable and unpredictable both 

from mine to mine and within specific ore deposits.’’ So there was 

a recognition, as I understand it, in the Clean Air Act about different ore levels in different places. 

Here is the deal. You know, we are going to listen to the President tonight, and as Americans, we are all concerned about losing 

jobs. I represent a very rural district that is suffering enormously 

from Federal regulation, whether it is on our Federal forest and 

the 90 percent reduction in Federal forestlands that by the way are 

burning—we can get into that whole discussion and what that does 

to health quality—or whether it is this boiler MACT standard. I 

have got three letters, Mr. Chairman, that I would like to submit 

into the record from—— 

Mr. WHITFIELD. Without objection. 

[The information follows:] 

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Mr. WALDEN. And these are about the uncertainty that is out 

there in the marketplace over your boiler MACT standards. While 

you may have some improvements, these companies in my district 

are saying we continue to have major ongoing concerns regarding 

achievability, affordable and lack of accounting for variability within our operations for newly released rule. Boise Cascade in this 

case, Boise will need to spend millions of dollars in new investments for multiple control technologies which can conflict with 

other existing control technologies. There is also an issue they raise 

about how they use every bit of the wood stream back into their 

facilities, which we used to applaud them for doing, no waste, and 

apparently in some of the other rules that are coming out of your 

agency, they now would have to treat some of that resin that they 

now burn in their boilers as solid waste and put it in landfills and 

replace that with fossil fuels. I mean, this is why—and I understand unless you are out there you don’t get this, this is why a lot 

of Americans are not investing in their own companies because 

there is such uncertainty in the marketplace over all these rules 

and regulations, and I hear it every day I am out in my district, 

and my time is expired. 

Mr. WHITFIELD. Thank you, Mr. Walden. 

At this time I recognize the gentleman from Texas, Mr. Green, 

for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

Ms. McCarthy, good to see you again. 

Ms. MCCARTHY. You too as well. 

Mr. GREEN. Like my colleague, Joe Barton, we appreciate your 

working with us on a lot of issues. Obviously sometimes we don’t 

get to the end result that each of us can agree to. 

In the boiler MACT rule, you make a change in the definition of 

waste because the courts found in 2000 the definition was not strict 

enough. This change has meant that some traditional fuels in 

many of these plants are now classified as waste and now the facilities in a regulatory sense become commercial industrial solid 

waste incinerators. I have a couple questions. 

Are you sympathetic to the argument from the cement companies 

they are in a bind because they are being forced to comply with the 

new NESHAP rule but then might end up being regulated as a 

commercial industrial solid waste incinerator, then some of their 

compliance investment would be for nothing and they will have to 

completely start over. It seems like that would be an economic 

waste, and to me, it seems they are really in a bind for the planning side. How would you work with them on this and given the 

massive job losses in the sector they really can’t afford to apply for 

permits for one designation and then take these costs and then 

turn around and have to start over? 

Ms. MCCARTHY. We are actually working with these companies 

right now. The rule has been finalized and they are making investment decisions and we are more than willing to sit down. The good 

news is that the incinerator rule, they can either decide to be regulated as a cement facility or they can decide to burn solid waste, 

which would allow them to be regulated and require them to be 

regulated under the incinerator rule. 

166 

Mr. GREEN. So they have a choice to make which one they come 

under? 

Ms. MCCARTHY. They do, and depending upon what they want to 

do, they make that choice themselves and we allow that, but the 

good news is that any technology investment they might make if 

they decide to be regulated under the Portland Cement rule is the 

same type of technology that they would have to put in place to be 

regulated under the incinerator rule. The main difference is that 

they would have to look at developing much more explicit monitoring requirements and doing things differently for that purpose 

under CISWI, which is an area that we are looking at under our 

reconsideration and that will clarify itself. 

Mr. GREEN. One of my concerns is that some of these plants, 

they burn tires, they burn construction debris, and particularly 

with tires because of instead of having them on the side of the road 

people dump, we can actually have a beneficial use, and so that is 

part of my concern. 

A couple of people on the second panel will talk about they cannot design, install and commission emission controls under existing 

coal-fired boilers within 3 years. They claim this is particularly 

true because third-party resources with the expertise to design and 

install these controls will be in high demand as multiple boiler 

rules are being implemented in a short time by both the industry 

and electric utility industries. Do you share that concern, that 

there may not be the available technology to get there in 3 years? 

Ms. MCCARTHY. We have certainly looked at it. Let me hit the 

solid waste issue very briefly for you, Mr. Green. We know that 

concerns have been raised. We are working and we have developed 

guidance to address the tire issue so that we eliminate any uncertainty and clarify those rules. 

In terms of the coal-fired boilers, each one gets 3 years with the 

opportunity if there are technology problems to go to 4 years. We 

also know that there is fuel switching that is often done to achieve 

compliance because many of these coal boilers switch between biomass and coal, and it is a very effective strategy to achieve some 

of these compliance limits. So we are more than happy to work to 

ensure that compliance is achieved in a timely way. 

Mr. GREEN. Todd Elliott from Celanese Corporation is here to 

testify on the second panel. In his testimony, he talks at length 

about some of their boilers at the Narrows, Virginia, facility. I don’t 

have Narrows, Virginia, but I do have Celanese plants in our district. These boilers are identified by the EPA as top-performing 

units and used to set the proposed regulatory standards for hydrochloric acid and mercury emissions yet not even one of these topperforming units will meet the emissions standards for both mercury and hydrochloric simultaneously without installing costly 

emission controls. How is it they can be a top performer and yet 

not meet these new standards on a consistent level? 

Ms. MCCARTHY. Well, we know that that is an issue that has 

been raised to us. We have gathered more data. We are going 

through the reconsideration process and we fully believe that we 

will be able to assess that data and come up with standards that 

are meaningful and achievable. 

167 

Mr. GREEN. Hopefully we will come to an agreement on some of 

our other issues. 

My last question is, we have a plant that in addition to burning 

natural gas burns refinery fuel gas, petrochemical processed fuel 

gas in their boilers and process heaters. In both these cases, their 

blends of methane, propane and butane are clean-burning fuels. 

Does EPA does intend to exempt both refinery and petrochemical 

processed fuel gases from the numerical standards similar to natural gas? 

Ms. MCCARTHY. Yes, we did establish a process for that. We 

heard loud and clear during the comment period that we shouldn’t 

be segregating refinery gas any differently if it is as clean as natural gas. We have set a process to look at that. We are also looking 

at that again in the reconsideration process. So I feel very confident that we can come to a good understanding on that issue and 

have a very clear, well-defined process so that there is certainty in 

the business community, and I do believe that most of the refinery 

gas will most likely be required to do work practice standards as 

opposed to an emissions limit. 

Mr. GREEN. Thank you, Mr. Chairman. 

Mr. WHITFIELD. The chair now recognizes the gentleman from 

Louisiana, Mr. Scalise, for 5 minutes. 

Mr. SCALISE. Thank you, Mr. Chairman. I appreciate you having 

this hearing. I am proud to support the legislation that we are discussing today, and Ms. McCarthy, I appreciate you coming as well. 

I spent the last 5 weeks, as I am sure all my colleagues have, going 

throughout my district meeting with small business owners, middle-class families talking about the challenges that they are facing 

and things that we can do in Congress to get the economy back on 

track, to create jobs, and I have got to tell you, there was one recurring theme that came across with every single small business 

I met with, and they said the primary impediment to creating jobs 

today for them are the regulations coming out of this Administration, and EPA was at the top of the list of agencies that are bombarding them with regulations that have nothing to do with safety 

or improving the quality of life but in fact seem to be going 

through, I think, an extreme agenda of carrying out what is an 

agenda for some at the agency but is flying in the face of things 

that they want to do in creating jobs and investing. I mean, there 

is money on the sidelines. Anybody that follows markets today, 

that follows what is happening throughout our country will tell you 

there is trillions of dollars on the sidelines that could be invested 

right now at creating jobs, and the job creators, those people that 

have that money to invest, are telling us that it is the regulations 

coming out of agencies like EPA that are holding them back and 

so, you know, when you give your testimony, and I have listened 

to some of your testimony about the ability that you think your 

agency has to create jobs by coming out with regulations, you 

know, maybe you are living in a parallel universe to the one I am 

living in, but when I talk to people—and, you know, you gave a 

statement saying for every dollar in new rules that you then give 

back $24 in health benefits, for example, with the regulations you 

are proposing. You are saying that the rules that will require inVerDate Aug 31 2005 12:55 Aug 28, 2012 Jkt 037690 PO 00000 Frm 00175 Fmt 6633 Sfmt 6633 F:\112-08~2\112-82~1 WAYNE
168 

vestment, these rules that you are coming out with will require investments that will create jobs and put people back to work. 

You know, first of all, tell me, when you make rules, do you all 

really look and think that the rules you are making are going to 

create jobs? 

Ms. MCCARTHY. That is not their primary but we—— 

Mr. SCALISE. But do you—— 

Ms. MCCARTHY [continuing]. Certainly look at the economic impacts of our rules—— 

Mr. SCALISE. Because you have given some testimony—— 

Ms. MCCARTHY [continuing]. Looking at jobs. 

Mr. SCALISE. So, for example, I think you had testimony that for 

every million or million and a half dollars a business spends to 

comply with rules, you said that creates a job? 

Ms. MCCARTHY. I certainly—I did not say that and I don’t think 

I have submitted testimony to that effect. 

Mr. SCALISE. I think that was your testimony, and I will go back 

and look, and—— 

Ms. MCCARTHY. Maybe in the past, and that certainly does not 

sound unachievable. Oh, that is one of the studies that we use as 

a basis for our economic analysis. It indicates that. 

Mr. SCALISE. So what does it indicate, if you can give me the 

exact indication, because I read that in one of your statements. 

Ms. MCCARTHY. I think it indicates that for every million dollars 

expended on control equipment. We find that increased environmental spending generally does not cause a significant change in 

employment, and this is referencing a Morgan Stearns study that 

has been peer reviewed, and the scientific literature says our average across all four industries is a net gain of 1.5 jobs per $1 million 

in additional environmental spending. 

Mr. SCALISE. So basically what you are saying is, if you force a 

company to spend another million dollars complying with some rule 

that you come up with, Congress didn’t pass it but you all came 

with a rule, you are acknowledging that that is forcing businesses 

to spend money. So if you say a business is forced to spend a million dollars to comply with your rule, according to your metrics, 

that creates one and a half jobs. Is that one and a half jobs at your 

agency? 

Ms. MCCARTHY. I certainly don’t want to give the impression 

that EPA is in the business to create jobs. What we—— 

Mr. SCALISE. You are definitely not. 

Ms. MCCARTHY. We are in the business—— 

Mr. SCALISE. From everybody I have talked to, you are in the 

business of putting people out of work right now. 

Ms. MCCARTHY. No, we are in the business of actually—the 

Clean Air Act, its intent is to protect public health. 

Mr. SCALISE. Well, let me ask you this—— 

Ms. MCCARTHY. As a result of that, money gets spent and jobs 

get—yes. 

Mr. SCALISE. And jobs get what? 

Ms. MCCARTHY. Jobs grow. 

Mr. SCALISE. Again, maybe a parallel universe we are living in, 

but when you think jobs grow because of these regulations, I can 

show you small business after small business that can’t grow jobs 

169 

because of your regulations directly related to your regulations, not 

nebulous. 

And now we will get into the health issue because one of the 

things we hear and it was talked about in opening statements and 

yours as well is, you know, this has got to be done for health reasons. Let me bring you to a decision the President just made on 

the Ozone National Ambient Air Quality Standards where the 

President even acknowledged that EPA’s regulations and specifically as it related just a couple days ago to ozone actually shouldn’t 

go forward and asked you all to pull back. I would like to get your 

opinion, what is your reaction to the President saying your smog 

ruling is not a good move to make and asked you all to pull that 

back. 

Ms. MCCARTHY. The President issued a statement and it should 

speak for itself. 

Mr. SCALISE. But you are the agency that is tasked with that 

rule. I mean, what is your opinion on it? 

Ms. MCCARTHY. Once again, the President made the decision and 

he asked the agency to pull back that rule, and clearly the agency 

will and we will work very aggressively on the next review, which 

is what he asked us to do, the most current science, and we will 

move forward in 2013 to look—— 

Mr. SCALISE. Hopefully you all take that approach with these 

other rules that are costing jobs. 

I yield back. Thanks. 

Ms. MCCARTHY. The chair now recognizes the gentleman from 

Virginia, Mr. Griffith, for 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

I am a little concerned. Earlier today you said that you all are 

going through public comment and you didn’t need any help with 

the legislature, and I am just curious about that statement. Did 

you really mean that? 

Ms. MCCARTHY. Well, what I meant was there an indication or 

an inference that this legislation was in response to a need that 

EPA expressed, and it is not. 

Mr. GRIFFITH. So you understand that it is in fact the legislature’s job that all of us, as many have already stated, it is our job 

to go out and listen to our constituents and then we face election 

each year. You understand that? 

Ms. MCCARTHY. And it is EPA’s job to implement the laws that 

you enact. 

Mr. GRIFFITH. And it is also our job then to review those laws 

to determine whether or not we believe it in the best interest of the 

United States and if the public believes that there is something we 

should do that we should change it which is why the Founding Fathers gave us a 2-year time and not a lifetime term. Do you agree 

with that? 

Ms. MCCARTHY. I would not presume to do your job. 

Mr. GRIFFITH. And were you just getting a little testy with us 

when you said in Section 5 that you weren’t sure who was being— 

who the burden was on, whether it was the industries or whether 

it was the air-breathing public. Was that just a little testy comment, or do you really believe that? 

170 

Ms. MCCARTHY. I think I was trying to make a point about the 

lack of clarity in that language and the uncertainty that it would 

bring to the table and the potential it has to add uncertainty in the 

legal world that would preclude us from moving forward to achieve 

the benefit, the health benefits that the Clean Air Act intended. 

Mr. GRIFFITH. But you wouldn’t acknowledge that the line in section 5 that says the Administration shall impose the least burdensome refers back to the beginning of that paragraph where it says 

for each regulation promulgated? 

Ms. MCCARTHY. But whose burden should we look at? What we 

look at are the health benefits compared with the costs associated 

with the implementation of that rule and we maximize the benefits 

and we minimize the cost to the extent that we can. 

Mr. GRIFFITH. But you said earlier, and I am just curious about 

it, because you said earlier that, you know, you weren’t sure 

whether that—and the same thing you just said to me—you 

weren’t sure who that applied to as to the burden and you said the 

air-breathing public, and I guess I am questioning that because the 

air-breathing public, we breathe out what you all have determined 

to be a pollutant, CO2, and I am wondering if that is some precursor to—I mean, I don’t think so, I thought it was just a testy 

comment, but now I am getting some of the same stuff back. Is 

that a precursor to you all anticipating regulations on the airbreathing public because this paragraph clearly only deals with 

regulations promulgated in relationship to the Clean Air Act. Are 

you following me? 

Ms. MCCARTHY. I don’t think so, but let me—— 

Mr. GRIFFITH. OK. Let me state to you then that it looks very 

clear to me it applies to regulations that you all—I don’t think 

there is any question that that paragraph deals with regulations 

that you all implement—— 

Ms. MCCARTHY. Oh, I think I misinterpreted—— 

Mr. GRIFFITH [continuing]. In Section 2A in the Clean Air 

Act—— 

Ms. MCCARTHY [continuing]. Your comment. What I was—— 

Mr. GRIFFITH [continuing]. And so if you think it applies to the 

air-breathing public, you must be getting ready to regulate it. 

Ms. MCCARTHY. No, no. When the agency interprets burden, is 

it the burden to industry to comply or is it the health burdens associated with the pollution for the breathing public? That was my 

point. I apologize if I was indicating that I would be regulating individuals. 

Mr. GRIFFITH. Well, I didn’t think you were but then I have seen 

strange—— 

Ms. MCCARTHY. That is certainly what I intended. 

Mr. GRIFFITH [continuing]. Things coming out of the EPA, so I 

wasn’t certain. That being said, you all don’t think that there are 

any time problems for these industries? You are dealing with a 

number of them. We heard about Oregon and other places and you 

don’t think there are any time issues. You think that we should 

stay, and in your responses to Congressman Dingell, you indicated 

that you thought the timelines should remain exactly the same and 

go into effect in April notwithstanding other questions have come 

up and said there is a problem here and you say we are working 

171 

with them. Do you still think the timeline that you all have laid 

out is perfectly reasonable? 

Ms. MCCARTHY. I would tell you that administratively, we have 

the tools available to us to address the timeline concerns and we 

will certainly be looking at these with three out of the four rules. 

We have stayed them ourselves, and we are going through a reconsideration process. All I am suggesting is—— 

Mr. GRIFFITH. But I am correct that that reconsideration process 

has actually been objected to by certain groups and the courts. Is 

that not true? 

Ms. MCCARTHY. That is true. 

Mr. GRIFFITH. And so there is a possibility that if the court rules 

that your reconsideration was not proper, that we are stuck with 

the March 2011 regulations. Isn’t that true? 

Ms. MCCARTHY. The agency believes that that the authority that 

Congress has afforded EPA allows us to stay the rules in exactly 

the way we have done it and that we are not at—— 

Mr. GRIFFITH. But that is currently in the courts being thought 

out, so—— 

Ms. MCCARTHY. As is most of our rules, yes. 

Mr. GRIFFITH. But we don’t have any guarantee unless we do 

something that we are not going to get stuck with the March 2011 

rules. Isn’t that true? Knowing that the courts—that we can disagree with the courts but sometimes they rule in ways that we 

don’t anticipate. Isn’t that true? 

Ms. MCCARTHY. I do not believe that you are at risk of having 

a court tell you that we should be stopping our reconsideration 

process and completing it by April of next year. 

Mr. GRIFFITH. But you would agree that any good lawyer has 

been wrong at some point in time as to what the courts might do, 

would you not? 

Ms. MCCARTHY. I have pointed that out a few times. 

Mr. GRIFFITH. I yield back my time, Mr. Chairman. 

Mr. WHITFIELD. At this time I recognize the gentleman from 

Massachusetts, Mr. Markey, for 5 minutes. 

Mr. MARKEY. Thank you, Mr. Chairman, very much. 

Forty-nine years ago in September of 1962, President Kennedy 

issued an urgent call to the Nation to be bold. He said that we 

shall send to the moon 240,000 miles away from the control station 

in Houston a giant rocket more than 300 feet tall, the length of a 

football field, made of new metal alloys, some of which have not yet 

been invented, capable of standing heat and stresses several times 

more than have ever been experienced, fitted together with a precision better than the finest watch, and we did it, and we did it less 

than 7 years after that speech. 

Today we are holding a hearing on Republican legislation that 

essentially exempts the cement industry and industrial boiler sector from having to install existing technologies. Nothing has to be 

invented at all to remove mercury and other toxics from their 

smokestacks because evidently the can-do Nation that sent a man 

to the moon in under 10 years just can’t do it when it comes to 

cleaning up air pollution using commercially available technologies 

that already are on the shelf today. 

172 

Now, shortly after the 1996 Telecommunications Act was passed 

out of this committee, it became the law. We were transformed as 

a Nation from a black rotary dial phone Nation to a BlackBerry 

and iPad nation. This committee say we can do it, but can we install the best available technologies in cement kilns to reduce the 

amount of mercury poisoning in children’s brains? No, that is just 

too hard. We can’t find anyone smart enough to figure it out. Instead of installing commercially available technology on cement 

kilns, cement plants, we will just install a Portland cement shoe on 

the EPA and throw it in the river, and if the EPA doesn’t die from 

drowning, the mercury will definitely kill it. 

Ms. McCarthy, 2 months ago the House considered a bill to ban 

compact fluorescent light bulbs. During debate on that bill, we 

were repeatedly told by the Republicans that the mercury vapors 

from those light bulbs is dangerous, and even that ‘‘exposing our 

citizens to the harmful effects of the mercury contained in CFL 

light bulbs is likely to pose a hazard for years to come.’’ 

Now, the cement rule that we are debating here today alone 

would reduce mercury emissions, which the Republicans really care 

about, by 16,600 pounds per year. Now, there are three 3 milligrams of mercury in one compact fluorescent light bulb, almost 

seven-millionths of a pound. So the cement rule will eliminate the 

same amount of mercury in 1 year as banning two and a half billion compact fluorescent light bulbs. 

Ms. McCarthy, what is the greater public health threat, the tons 

of mercury coming out of cement kilns that are being sent right up 

into the atmosphere or light bulbs? 

Ms. MCCARTHY. Based on the information provided, it is clear 

that it is cement. 

Mr. MARKEY. Cement. Well, I am glad that the Republicans can 

hear that. Cement is a greater threat because we have heard so 

much concern about light bulbs from them this year and mercury. 

Now, we have been told that all these bills do is to give EPA an 

extra 15 months to study and refine its proposals though, of course, 

that is on top of the 20 years it has been since Congress told the 

EPA to set these standards in the first place. Now, EPA asked the 

courts for an extra 15 months to refine its boiler regulations. Did 

EPA also ask for an additional 15 months to refine its cement regulations? 

Ms. MCCARTHY. No. 

Mr. MARKEY. Now, isn’t it true that these bills actually remove 

any deadline for finalizing the rules? 

Ms. MCCARTHY. Yes. 

Mr. MARKEY. Do you agree that if the EPA for some reason chose 

not to finalize them for years, it would be virtually impossible to 

force the EPA to act? 

Ms. MCCARTHY. It would be unclear how. 

Mr. MARKEY. Now, the way I understand this part of the Clean 

Air Act, EPA basically grades on a curve. To get an A, you just 

have to do what the other A students do by installing the same 

commercially available technologies that the cleaner facilities have. 

Is that not right? 

Ms. MCCARTHY. Yes. 

173 

Mr. MARKEY. So no one has to invent anything new in order to 

comply with the rule? 

Ms. MCCARTHY. This is existing equipment that can achieve 

these standards. 

Mr. MARKEY. I thank the chairman. 

Mr. WHITFIELD. Thank you. 

At this time I recognize the gentleman from Texas, Mr. Olson, 

for 5 minutes. 

Mr. OLSON. I thank the chair, and first of all, as a member who 

represents the Johnson Space Center, I appreciate my colleague 

from Massachusetts with his comments about human spaceflight 

and the Johnson Space Center, and for all of you out there, that 

is an example of bipartisanship on Capitol Hill, so thank you for 

those comments. 

Assistant Administrator McCarthy, great to see you again, and 

thank you so much for coming here today. I appreciate your willingness to testify, and I appreciate your apology about the tardiness of your written testimony for the committee members, but my 

point is, and my only comment about that is, apologizing to me is 

important but you should apologize to the people of Texas 22, the 

people I represent. They have got many, many questions about 

what EPA is doing there and how it is impacting their business, 

and because we got this testimony in a tardy manner, I am not 

doing the best job I can representing them, so I appreciate your 

apology and your commitment to making sure this never, ever happens again. And that is all I have to say about that, as Forrest 

Gump would say. 

But I do have other things I want to say, and I am concerned 

that the EPA did not do their homework when they determined the 

maximum achievable control technology floor, and as I understand 

it and as we are going to hear in the panel after you, in many cases 

these standards are not achievable by real-world boilers. The 1990 

Clean Air Act Amendments require the EPA to promulgate technology-based emission standards but it allows for the possible supplementation of health-based standards. In your opening statement, and this is a rough quote, you said that every American is 

entitled to healthy air and a job. The committee agrees with that, 

but there has to be some balance, and again, the Clean Air Act 

Amendments of 1990 recognize that. Technology-based is the primary one balanced in some cases with supplementation by healthbased standards. And so my question for you is, is there enough 

data out there to supplement health-based standards over technology-based standards for the hazardous air pollution sources? 

Ms. MCCARTHY. There is not enough information for us to make 

the decision under the law that using a health-based emissions 

limit would be sufficiently protective with an adequate margin of 

safety. 

Mr. OLSON. OK. So if there is not enough data, how does the 

EPA determine and monetize the health benefits, positive health 

benefits that can be attributed to the boiler MACT rule? 

Ms. MCCARTHY. I think it is a bit of apples and oranges. A 

health-based emissions limit is something that would be proposed 

to us to take a look at that would identify risks associated with a 

health standard as opposed to technology being installed. We can 

174 

clearly and have assessed the health benefits the same way the 

prior Administration did. We assess the health benefits associated 

with our rule, taking a look at what technologies are available and 

how those rules could be achieved using that technology. A healthbased emissions limit wouldn’t establish a limit. It would simply 

say everything is OK at this facility if you manage it in a particular way. We did not certainly feel that with toxic pollutants 

that we could do anything other than have a complete assessment 

as to whether or not that health-based limit would actually achieve 

the kind of health protections that are required under the Clean 

Air Act, and we simply didn’t have that information to make that 

judgment. 

Mr. DINGELL. Would the gentleman yield? 

Mr. OLSON. I have got a couple more questions and I will yield 

back the remainder of my time, but one more question following up 

on that. So you said there isn’t enough data to determine and monetize the health benefits that can be attributed to the boiler MACT 

rule. Just following up on my colleague from Virginia’s comments 

about foreign sources. As you know, Texas is a border State. I 

mean, one-half of the southern border is the great State of Texas, 

1,200 miles, and I am very concerned that many of the emissions 

that are coming across the border standards that our businesses in 

Texas are being held to the Clean Air Act standards, and you say 

that there is not enough data to supplement the health standards 

yet we are promulgating standards. Why can’t we determine some 

sort of health standard for the emissions coming from foreign 

sources? Why do our businesses in the great State of Texas have 

to be penalized because they are being required the emissions that 

are somehow coming across the border, they are going to be in the 

line of fire. How come we can’t separate that out and give them 

some sort of credit so we can keep the business right here in America? 

Ms. MCCARTHY. We actually do have a wealth of information and 

it is part of the public disclosure associated with this rule and others on what type of pollution is coming in from other parts of the 

world and we do not challenge our facilities to account for that or 

to reduce that but we do account for their own emissions and we 

do look at what technologies are available that are cost-effective 

that will achieve significant public health improvement. 

Mr. OLSON. Well, just in summary, I will tell you that every time 

I go back home, the businesses back there, particularly the petrochemical businesses on the Port of Houston, feel like they are required to carry these emissions coming from foreign sources. It is 

unfair. It kills American jobs. 

I yield back the balance of my time. 

Mr. DINGELL. Will the gentleman yield to me? 

Mr. OLSON. I will yield, sir, but I have got a zero zero zero on 

the clock. 

Mr. DINGELL. Madam Administrator, you are giving me in your 

comments to my colleagues the impression that you are going to 

come forward with decisions on rules, which you will put in place 

before the questions associated with those rules have been fully answered and before you can assure us that you are not going to have 

to run out very shortly and initiate a new set of rules. It strikes 

175 

me that if that is the case, you are creating a serious problem both 

in terms of the administration of the law and politically for the 

agency. Can you assure me that you are not doing that and that 

when you conclude these rules that you will have then a rule which 

will be settled so that business can make the decisions and so that 

they will not have to run out and make new investments to satisfy 

a subsequent enactment of a new rule which will be made after the 

first rule has been completed? 

Ms. MCCARTHY. Mr. Dingell, perhaps I wasn’t as clear in what 

I was speaking about. When I was talking about the health-based 

emissions limit, which is I think what you are talking about, I believed that we were talking about the cement rule, which has actually been finalized, and the fact that in that rule we did tee up 

comment and we solicited comment on whether or not we could do 

a health-based emissions limit, and we asked for the data necessary to ensure that an emissions limit could be established that 

was lower than a technology limit, a technology-based limit that 

would be sufficiently protective. I was not speaking to the rules 

that are going to be reconsidered. 

Mr. DINGELL. You have given me no comfort, Madam Administrator. I am driven to the conclusion that you are telling me that 

when you have completed this, there is a probability that you will 

initiate new efforts to come forward with a new rule under perhaps 

different sections of the Clean Air Act. I regard that as being an 

extraordinarily unwise action by the agency in several parts. 

Mr. WHITFIELD. The gentleman from West Virginia, Mr. McKinley, is recognized for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

I am trying to grasp all this, and I appreciate your coming back 

in. We have had some interesting discussions here in this committee with you. Go back to the issue that we brought up a minute 

ago about 1962. I certainly wouldn’t take offense to that because 

it is something taken out of context. We weren’t in the middle or 

the tail end of a recession in 1962, were we? 

Ms. MCCARTHY. I don’t remember. 

Mr. MCKINLEY. But we were someplace, you and I. but that was 

a different time, and I don’t think anyone is saying that there is 

not a can-do ability, but right now we have 9.1 percent unemployment. We just got announced last month that there were no job increases whatsoever across America. So our businesses are trying to 

make some decisions. They know they can replace the boilers. If he 

is correct that they are on the shelf, for right now I will accept 

that. I am not sure I am going to completely buy that but I will 

accept that premise. But they have to make a decision. They have 

to make a decision right now in this economy. And over the break, 

I had an opportunity to visit two lumber producers in West Virginia, and both of them pleaded with me to give us time, more 

time. They have gone to—they are talking to the banks. First they 

are saying we meet some standards now, we are not polluting 

under the old standard, we are meeting some standards, we are 

meeting Clean Air Act, we are meeting the EPA standards, we are 

meeting those standards, and for someone to tighten the bolt right 

now in this economy is threatening them because there is already 

176 

one other major manufacturer in West Virginia lumber that went 

out of business due to this economy. 

We are hearing because of Dodd-Frank, some of the banks are 

not as anxious to loan money to the lumber industry now in this 

economy because it is a risky loan in this economy so there is some 

reservation for that. So they are asking us—the one company was 

$6 million, they have already got an estimate to make this replacement, and they are trying—how do I make this choice because their 

own analysis has said if they do make this investment, the likelihood of their company surviving over a period of time won’t be. 

They know it is marginal right now. They have lost money for the 

last 2 years, and to go out and borrow $6 million more puts 600 

people at risk, 600 people. 

So I am asking you, if you had—if you were sitting in that boardroom and you know that your company has lost money the last 

numbers of years, but yet the EPA is saying we want you to buy 

something off the shelf and put it in place and it is going to cost 

you $6 million and you probably are going to lose your 600 jobs, 

what do you do? What would you do under that—what is wrong 

with their business decision to ask for a delay until this economy 

gets a little stronger and they can be more competitive? What is 

the matter with that? 

Ms. MCCARTHY. Mr. McKinley, I will tell you that EPA is certainly not oblivious to the economic challenges that we are all facing. If you look at the rules and the way in which we are evaluating our rules, we are doing a better job every rule to try to understand the economics—— 

Mr. MCKINLEY. What does he do in that boardroom? 

Ms. MCCARTHY [continuing]. To try to understand the jobs. 

Mr. MCKINLEY. Ms. McCarthy, you have to make a decision because you are breathing down his neck. 

Ms. MCCARTHY. We have successfully through the 40-year history of the Clean Air Act found a way to grow the economy with 

significant—— 

Mr. MCKINLEY. Oh, you all said that. You said that before. You 

came in here and you said yourself that the EPA has actually created jobs and you said it here again today, and I am still waiting. 

I asked you then back in February if you could provide that information of how the EPA regulations create jobs, and I still don’t 

have it. This is now September and I still haven’t received that report of how your regulations create jobs. You said it here today. 

You said you are expecting job growth if the EPA standards were 

put into effect. 

Ms. MCCARTHY. That is correct. 

Mr. MCKINLEY. What are we talking about? Construction jobs 

that last for 6 months but then put the 600 people out of work in 

my district? That doesn’t work. I don’t understand where you are 

going but you haven’t still answered my initial—if you were in the 

boardroom, what would you do? Put your company under or would 

you let the people go? 

Ms. MCCARTHY. I firmly believe that we need to meet our economic challenges in a way that continues to grow the economy. 

That is my belief and I think we have done it and I think we can 

continue to do that. 

177 

Mr. WHITFIELD. The gentleman from California, Mr. Bilbray, is 

recognized for 5 minutes. 

Mr. BILBRAY. Thank you. 

Ms. McCarthy, how many years have you served at the local 

level administering the Clean Air Act? 

Ms. MCCARTHY. I served—well, I don’t know whether I could say 

I administered the Clean Air Act but I worked at the local level for 

11 years. 

Mr. BILBRAY. OK. You know, I was one of the few people on this 

side of the aisle to support Mr. Markey’s position on the light bulb 

issue but let me tell you something, after 16 years as a local administrator with the best scientists in the world in California, 

which you would admit that California—— 

Ms. MCCARTHY. They are good, but I came from Massachusetts. 

Mr. BILBRAY. That is why you adopt our fuel standards and supported our action to eliminate the ethanol-methanol mandate. 

Ms. MCCARTHY. Fair point. 

Mr. BILBRAY. But my point being, I was a little taken aback that 

somebody in your position did not take the opportunity to point out 

to Mr. Markey that to compare ambient air and indoor air exposures is really inappropriate, especially with the challenges we 

have seen. And can we clarify the fact that there are major challenges in indoor air and we shouldn’t be mixing those two up and 

giving the impression that somehow from the health risk point of 

view it is all the same? 

Ms. MCCARTHY. They are very different exposures. 

Mr. BILBRAY. Thank you. I am very concerned about that because 

of science. 

Now, my biggest concern, as I look at things like the solid waste 

emissions regs where a company has to address the emissions for 

that day, but if you take the same waste and you put it off and 

bury it, those emissions have to be mitigated per day for the next 

60 to 70 years, but there is no penalty for the fact that you are basically sending the emissions off to your grandchildren. It is almost 

like the regulations encourage people to do the environmentally irresponsible thing because on paper it looks good for that 24-hour 

period but in fact, in a lifecycle, you are actually having a cumulative impact and those emissions are going to be pollutant. It is 

that kind of regulation as an air regulator that I am just outraged 

that we are not brave enough to stand up and talk about and the 

environmental community activists and regulatory have walked 

away from it. 

I would ask you, what State has been more aggressive at moving 

regulatory oversight and mandates than the State of California 

when it has come to clean air? 

Ms. MCCARTHY. I would say that California has been very aggressive. It’s air pollution challenges have been quite extreme. 

Mr. BILBRAY. OK. And I will say this as somebody who had the 

privilege of doing that. I think people on my side of the aisle are 

in denial of the health challenges of environmental risk, but I have 

got to tell you something, when you stand up and give us the same 

line that California has been using for decades, that this will be 

great for business, we have gone from being the powerhouse in this 

country and the world, the California economy, to a 12 percent unVerDate Aug 31 2005 12:55 Aug 28, 2012 Jkt 037690 PO 00000 Frm 00185 Fmt 6633 Sfmt 6633 F:\112-08~2\112-82~1 WAYNE
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employment to the fact that you do not manufacture almost anything in California anymore, when we have gotten to the point 

where our scientists who are developing green fuel technology have 

to leave the State because they cannot get the permits or the ability financially to be able to produce it in the State. I just think that 

we are really in denial if you really think that California is 

wealthier, more prosperous and that the green technology is penciled out so much that it is now an example of the huge benefits 

of regulatory mandates actually helping the economy in the long 

run, and I just ask you to consider the fact that for those of us that 

don’t have the cement manufacturing in my district—I don’t. We 

are importing it from Mexico, the components for concrete. We 

don’t talk about the mobile sources. And my question to you is this. 

Is there a consideration of the increased mobile sources if these 

plants break down? Because why not produce it in Kampichi and 

ship the cement up the river into these areas? 

Ms. MCCARTHY. There has not been a full lifecycle assessment of 

this, no. 

Mr. BILBRAY. I bring up, we found out that by not doing a full 

lifecycle on things like ethanol, we realized we grossly underestimated the environmental impact because we did not do the full 

cycle. Don’t you agree that there was a mistake made there? 

Ms. MCCARTHY. The only thing I would point out to you is that 

I think the comparison with California, looking at its National Ambient Air Quality challenges, and compare that to technology-based 

solutions that will drive toxic pollution down is not exactly an 

equal comparison. 

Mr. BILBRAY. The equal comparison is the fact, though, that the 

projections of an economic boon from the enforcement of environmental regs was grossly overstated in California and historically 

has been overstated in the United States, and I will bring it up 

again: the great selling point of fuel additives that have been told 

by scientists in the 1990s that the Federal Government is making 

a mistake about, we continue to this day to follow that failed policy 

with the environmental damage and the economic damage caused 

by it, and we don’t reverse it. My concern is not that we try new 

things or we make mistakes but when we try new things and make 

mistakes, we don’t go back and correct it. It has been how many 

years since we put a clean fuel mandate out that everybody knows 

was a failure. 

Ms. MCCARTHY. We are moving forward with these rules because 

the Clean Air Act requires it. We are long delayed. There are significant public health benefits but we clearly look at the economy 

and ensure that we are doing it as cost-effectively as we can and 

to assess the impacts. 

Mr. BILBRAY. And I think you are denying the economic impact 

as much as you damn the other side for denying the environmental 

impact. 

Mr. WHITFIELD. At this time the chair recognizes the gentleman 

from Colorado, Mr. Gardner, for 5 minutes. 

Mr. GARDNER. Thank you, Mr. Chairman, and thank you, 

Madam Administrator for being here today. 

A couple of questions. I appreciate your support that you give in 

your testimony for meeting deadlines and the importance of deadVerDate Aug 31 2005 12:55 Aug 28, 2012 Jkt 037690 PO 00000 Frm 00186 Fmt 6633 Sfmt 6633 F:\112-08~2\112-82~1 WAYNE
179 

lines in the Clean Air Act, but I am concerned that not all deadlines are equal in the eyes of the EPA. The Clean Air Act has an 

express 1-year deadline for taking final agency action on PSD permits. However, when you look at drilling in offshore Alaska, some 

of these permits continue to languish for 5 years. They have prevented us from accessing billions of barrels of oil that could make 

a long-term dent in gasoline prices in the United States. Why does 

the EPA pick and choose statutory deadlines that it feels to abide 

by? 

Ms. MCCARTHY. We actually try very hard to meet the statutory 

deadlines, and the 1-year deadline is one that we are doing everything we can to achieve. There are certainly challenges with ensuring that we get complete information so that the application can be 

assessed and we can move that forward. We work very hard with 

applicants to expedite permitting as much as possible. 

Mr. GARDNER. Do you think some deadlines have more importance than other deadlines? 

Ms. MCCARTHY. I think that the law treats them all equally and 

I think we are equally obligated to do them. 

Mr. GARDNER. But the EPA hasn’t followed the law. 

Ms. MCCARTHY. We do our best to do that, to meet every deadline in the statute. Do we always succeed? Absolutely not. 

Mr. GARDNER. Two months prior to announcing the boiler MACT 

rules, the EPA sought a 15-month extension to re-propose three of 

the rules. Do you believe it is accurate to assume that the EPA 

needed an extension because the rules needed more work? 

Ms. MCCARTHY. The rules actually changed significantly from 

proposal to final. We felt that they were legally vulnerable without 

entertaining more public comment and process associated with 

those changes. 

Mr. GARDNER. So it needed more work? 

Ms. MCCARTHY. Say it again. 

Mr. GARDNER. So it needed more work? 

Ms. MCCARTHY. It needed more public comment. 

Mr. GARDNER. But just public comment, not more—oK. 

Ms. MCCARTHY. We are certainly opening up to more work because we solicited additional comment, and with more data, we will 

take a look at it. 

Mr. GARDNER. In your statement, you stated in your statement 

that it is terrifically misleading to say that enforcement of the 

Clean Air Act costs jobs. Have you ever had a manufacturing facility tell you personally that it simply cannot comply with all the 

regulations coming out of the EPA? 

Ms. MCCARTHY. Many times. 

Mr. GARDNER. Your testimony says that for every $1 million 

spent in environmental spending to comply with environmental 

rules, it creates 1.5 jobs. According to the forest products industry, 

$7 billion it will cost to comply with the boiler MACT rule. Are you 

then saying that that will create 10,500 jobs? 

Ms. MCCARTHY. No, I am not, and I am also not indicating 

that—— 

Mr. GARDNER. Why would you—— 

Ms. MCCARTHY [continuing]. I agree—I was actually quoting a 

study that looked at specific industry sectors, and that—— 

180 

Mr. GARDNER. But you must agree with it if you put it in the 

statement. 

Ms. MCCARTHY. I agree that that literature has been peer-reviewed and it is sound science, yes. 

Mr. GARDNER. So then for every $1 million in spending, the—— 

Ms. MCCARTHY. In those four sectors is what that—— 

Mr. GARDNER. And the paper and pulp industry, I believe, is one of the four sectors so you are saying that $7 billion—— 

Ms. MCCARTHY. I am not indicating at all that I believe the numbers that industry has indicated it associated with the cost of these 

rules. These major source boilers will in no way is estimated using 

scientific peer-reviewed methods to cost anywhere near that figure. 

Mr. GARDNER. Do you believe that these regulations altogether 

will put a number of operations out of business? 

Ms. MCCARTHY. I believe that there will be choices made by industry on how they will comply. 

Mr. GARDNER. Including whether they stay in business or not? 

Ms. MCCARTHY. That is going to be their choice looking at a variety of factors, perhaps least of which is compliance with these regulations. 

Mr. GARDNER. So the EPA’s own number on boiler cost was $5 

billion, so that is just a little bit less than—— 

Ms. MCCARTHY. No, actually the boiler cost was a little less than $2 billion. 

Mr. GARDNER. That is the information I have was $5 billion from 

the EPA. 

Ms. MCCARTHY. That was actually the proposal. We have cut 

that in half using flexibilities under the law and looking at new 

data. 

Mr. GARDNER. So later we are going to hear the president and 

CEO of Lehigh Hanson talking about a loss of 4,000 jobs. Do you 

believe that business owners are being disingenuous when they tell 

us that it is going to cost them 4,000 jobs? 

Ms. MCCARTHY. I don’t want to attribute motive to anything. All 

I can tell you is under the history of the Clean Air Act, industry 

has significantly overstated anticipated costs and they have not 

come to be. 

Mr. GARDNER. In your testimony, I counted the number of times 

where you say things like ‘‘in contrast to doomsday predictions, history has shown again and again that we can clean up pollution, 

create jobs and grow the economy. Economic analysis suggests the 

economy is billions of dollars larger today.’’ Let us see. ‘‘Some 

would have us believe that job killing describes EPA’s regulations. 

It is terrifically misleading. Investments in labor-intensive upgrades that can put current unemployed or underemployed Americans back to work as a result of environmental regulations. Jobs 

also come from building and installing pollution control equipment.’’ Let us see. ‘‘Contrary to claims that EPA’s agenda will have 

negative economic consequences, regulations yield important economic benefits.’’ Let us see. It goes on. You say, ‘‘Moreover, the 

standards will provide these benefits without imposing hardship on 

America’s economy or jeopardizing American job creation.’’ 

Late last month, President Obama withdrew the ozone standards. He said, ‘‘I have continued to underscore the importance of 

181 

reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover.’’ Mr. Sunstein’s letter to 

your agency said, ‘‘The President has directed me to continue to 

work closely with executive agencies to minimize regulatory costs 

and burdens.’’ Is he wrong then? Your testimony talks about creating jobs through environmental regulations. Was the President 

wrong in making that—— 

Mr. RUSH. Regular order, Mr. Chairman. 

Mr. WHITFIELD. The gentleman’s time has expired. Did you want 

to respond? 

Ms. MCCARTHY. No, the President made a sound decision and the 

agency is following it. 

Mr. GARDNER. A sound decision? He made a sound decision? 

Mr. WHITFIELD. At this time we will conclude the questions for 

the first panel, and Ms. McCarthy, we appreciate your being here 

today. As you remember, many of the members had questions and 

further comments that they would ask the EPA to respond to, so 

we look forward to your getting back to us with that information 

and our staffs will be working with you all to make sure that all 

of that is taken care of. So thank you very much. 

Ms. MCCARTHY. Thank you very much, Mr. Chairman. 

Mr. WHITFIELD. At this time I would like to call up the second 

panel. On the second panel today, we have Mr. Daniel Harrington, 

who is the President and CEO of Lehigh Hanson Incorporated. We 

have Mr. James Rubright, who is the Chairman and CEO of 

RockTenn Company. We have Dr. Paul Gilman, who is the Chief 

Sustainability Officer and Senior Vice President, Covanta Energy 

Corporation. We have Mr. John Walke, who is the Clean Air Director and Senior Attorney for the Natural Resources Defense Council. 

We have Mr. Eric Schaeffer, who is the Executive Director for the 

Environmental Integrity Project. We have Dr. Peter Valberg, who 

is the Principal in Environmental Health at Gradient Corporation, 

and we have Mr. Todd Elliott, General Manager, Acetate Celanese 

Corporation. 

So thank all of you for being here today. We appreciate your patience, and we look forward to your testimony. Each one of you will 

be given 5 minutes for an opening statement, and then we will 

have our questions at that point. 

So Mr. Harrington, we will call on you for your 5-minute opening 

statement. Thank you. 

182 

STATEMENTS OF DANIEL M. HARRINGTON, PRESIDENT AND 

CEO, LEHIGH HANSON, INC.; JAMES A. RUBRIGHT, CEO, 

ROCK-TENN COMPANY; PAUL GILMAN, PH.D., CHIEF SUSTAINABILITY OFFICER, COVANTA ENERGY CORPORATION; 

JOHN D. WALKE, CLEAN AIR DIRECTOR AND SENIOR ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL; ERIC 

SCHAEFFER, DIRECTOR, ENVIRONMENTAL INTEGRITY 

PROJECT; PETER A. VALBERG, PH.D., PRINCIPAL, GRADIENT 

CORPORATION; AND TODD ELLIOTT, GENERAL MANAGER, 

ACETATE, CELANESE CORPORATION 

STATEMENT OF DANIEL M. HARRINGTON 

Mr. HARRINGTON. Thank you, Mr. Chairman. I am Dan Harrington. I am the President and CEO for Lehigh Hanson, and we 

are one of the United States’ largest suppliers of heavy building 

materials to the construction industry. Our products include cement, brick precast pipe, ready-mixed concrete, sand and gravel, 

stone, and many other building materials. We have 500 operations 

in 34 States and we employ about 10,000 people in the United 

States. Also, I am presently the Chairman of the Government Affairs Council of the Portland Cement Association, and our association represents 97 percent of the U.S. cement manufacturing capacity. We have nearly 100 plants in 36 States and distribution facilities in all 50 States. We also employ approximately 13,000 employees. I am here today to express strong support for H.R. 2681, the 

Cement Sector Regulatory Relief Act of 2011. 

The current recession has been too long and too deep, and it has 

left the cement industry in its weakest economic conditions since 

the 1930s. Domestic demand for cement has dropped by more than 

35 percent in the past 4 years, and we have shed over 4,000 job 

in the United States. Although 13,000 well-paying cement manufacturing jobs remain, and their average compensation of $75,000 

a year, there are three EPA rules in particular which could force 

the loss of an additional 4,000 jobs, as you heard a second ago. Specifically, the National Emission Standards for Hazardous Air Pollutants rule, or NESHAP, for the Portland cement industry, the 

commercial and industrial solid waste incinerator, CISWI, rule, 

and finally, the agency’s change in the definition of solid waste. 

In the face of all the economic uncertainty that faces our great 

Nation, the industry welcomes the introduction of H.R. 2681. It will 

mitigate regulatory uncertainty and place these rules on a more 

reasonable schedule. Second, it will enable our industry to continue 

to make capital investments in the United States that will preserve 

jobs. It will also give us time to resolve the differences with the 

EPA on individual compliance levels which will result in regulations that are fair, balanced and, most importantly, achievable. 

Moreover, it will provide the time necessary for the economy to recover to a point where the industry is able to invest in plant upgrades and cost reductions again. 

Earlier this year, the Portland Cement Association completed an 

analysis of the economic and environmental impacts of several final 

and proposed EPA rules, including those addressed by H.R. 2681. 

The study concluded that one rule alone would impose a $3.4 billion capital investment on an industry that generated $6.5 billion 

183 

in revenues in 2010. Now, the EPA did its own cost analysis, and 

their statistics show that it would require a $2.2 billion capital investment. So whether it is $2.2 billion or $3.4 billion, it is significant capital investment, and no one has addressed operating cost 

increases due to the new equipment, which will be plus 5 to 10 percent over our current cost structure just to operate our plants in 

the future. 

Also as you have heard, 18 of our plants could close, and although the EPA downplays the consequence of job loss, these job 

losses, the realities are that these jobs will not be readily absorbed 

in the communities where most plants are located. Therefore, the 

multiplier effect takes place in our communities where contractors, 

service employers, raw material suppliers who feed our cement 

plants with goods and services and consultants no longer will have 

employment either to support the towns and villages where our cement plants are located. The agency also does not account for the 

impact of these closures outside the cement sector. Disruptions to 

the availability of supplies will have adverse impacts on our construction sector, which, as you know, has an unemployment rate of 

nearly 20 percent. If the economy rebounds, a decrease in domestic 

production will require an increase in imported cement, probably 

up to as high as 50 percent by the year 2025. All of that cement 

will be coming in from offshore sites from around the world. 

Two other rules, the so-called CISWI and related definition of 

solid waste, would force an additional four plant closures and add 

another $2 billion in compliance costs by 2015. Ironically, these 

also actually undermine the rulemaking that is in place for 

NESHAP and cause conflict in the two standards for us to choose 

which way to go or how to invest. 

The basic elements of the Cement Regulatory Relief Act, a reproposal of the rules followed by an extension of the compliance 

deadline, provide a win-win opportunity for American workers and 

for the environment. This bipartisan bill is also consistent with the 

President’s Executive Order issued earlier this year calling for reasonable regulations. 

I thank you for this opportunity to testify, and I welcome any 

questions as we go through the day. Thank you. 

[The prepared statement of Mr. Harrington follows:] 

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Mr. WHITFIELD. Thank you, Mr. Harrington. 

Mr. Rubright, you are recognized for 5 minutes. 

STATEMENT OF JAMES A. RUBRIGHT 

Mr. RUBRIGHT. Thank you, Chairman Whitfield, Ranking Member Rush and members of the subcommittee. My name is Jim 

Rubright and I am the CEO of RockTenn, and I am testifying today 

on behalf of the American Forest and Paper Association and 

RockTenn. RockTenn is one of America’s largest manufacturers of 

corrugated and paperboard packaging and recycling solutions. We 

operate 245 manufacturing facilities and we employ 26,000 people, 

well over 22,000 of whom are in the United States. I am here today 

to express support of RockTenn and the other AF&PA member 

companies for H.R. 2250. 

We need the additional time and certainty provided by the bill 

for many reasons. The EPA needs the time provided in this bill to 

write a boiler MACT rule that is achievable, affordable and based 

on sound science. Our companies need the time to develop compliance strategies which don’t exist today in full and to implement the 

massive capital expenditure programs that will be required to comply with the rule and to do so once and to do so with certainty. Our 

country needs and deserves this bill in order to mitigate the adverse impact of boiler MACT and the related rulemakings on job 

growth and economic recovery. 

Please let me explain. First, a jobs study produced by the 

AF&PA by Fisher International finds that the boiler MACT regulations will result in significant job losses within the forest products 

industry. Specifically, the Fisher study concludes that the boiler 

MACT rules impose on top of the other pending regulations that 

will impact the forest products industry will put over 20,000 direct 

jobs only in the pulp and paper sector at risk. That is about 18 percent of the pulp and paper industry’s total workforce. Adding the 

impact on suppliers and downstream spending manufacturing income puts the total number of jobs at risk at 87,000 jobs. When the 

boiler MACT rules are combined with other pending Air Act rules, 

and I have included an exhibit that shows 20 rules that we face 

over the next few years, the jobs at risk rise to 38,000 direct pulp 

and paper jobs and 161,000 total jobs. 

The economic consequences of these rules will be felt most keenly 

in communities that cannot afford further job losses. Most of our 

mills are located in rural communities where there are few alternatives for employees who see their mills close, and since 1990, in 

answer to one of the questions that was asked earlier, 221 mills 

have closed in the United States, costing 150,000 jobs. We need 

Congress’s help to avoid this outcome. 

I would also ask you to bear in mind that RockTenn and its predecessors through mergers has already wasted $80 million trying to 

comply with the 2004 boiler MACT rule that was eventually vacated by the courts just 3 months before the compliance deadline. 

Let me cite the positive things that the bill does to help our companies. This bill will go a long way to see that the EPA has adequate additional time to promulgate a boiler MACT rule that is 

based on sound science. Earlier this year, as you know, the EPA 

was driven by court-imposed deadlines to issue a final boiler rule 

189 

it knew was flawed. By giving the EPA time it needs to properly 

address this complex scientific and technological issues associated 

with boiler MACT to free us from the risk of litigation imposing an 

earlier effective date of that act, H.R. 2250 will actually help avoid 

further delays, reduce the uncertainty which is going to follow from 

the certain litigation that will follow the adoption of the final rule 

and therefore reduce the risk to us of further wasted capital expenditures. 

The EPA’s non-hazardous secondary material rules, which is a 

companion to the boiler MACT rule, will make biomass and other 

alternative fuels commonly used for energy in the pulp and paper 

industry subject to regulation as a solid waste. Please remember, 

our virgin mills generate about 70 percent of their total energy requirements from biomass recovered in our paper making. 

Classifying a part of this biomass as waste will dramatically increase the cost of compliance with these unnecessary burdens, likely resulting in the closure of many mills and causing many others 

to switch from biofuels to fossil fuels. The 3-year compliance period 

is too short and will again force our member companies to make 

substantial capital expenditures inefficiently and based on our current best guesses of what the final rules will provide. We estimate 

the boiler MACT will cost our industry $7 billion in capital, 200 for 

RockTenn alone, and our annual operating costs will increase by 

$31 million. Based on the rule the EPA is considering, our suppliers can’t even assure us that this or any amount of capital will 

make us fully compliant. We don’t have the excess capital lying 

around to have a replay of the 2004 boiler MACT rule fiasco. We 

need this bill to avoid this terrible result. 

Finally, we need this bill to make sure that the EPA’s stay of the 

boiler MACT rule remains intact and is not reversed prematurely 

through court actions. 

Mr. Chairman and members of the subcommittee, I thank you for 

offering this bill. 

[The prepared statement of Mr. Rubright follows:] 

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Mr. WHITFIELD. Thank you. 

Dr. Gilman, you are recognized for 5 minutes. 

STATEMENT OF PAUL GILMAN 

Mr. GILMAN. Thank you, Mr. Chairman and members of the committee. Thank you for the opportunity to be here. I speak to you 

today as an employee of Covanta Energy, which is one of he Nation’s largest biomass-to-electricity producers. I also speak to you 

as a former Assistant Administrator of the EPA for Research and 

Science Advisor for the agency. 

We currently operate biomass facilities that will be affected by 

these MACTs. The fuel is largely agricultural and forestry residue, 

making us one of the more sustainable uses of biomass. Currently, 

we are walking an economic tightrope for those facilities. Two are 

in standby mode because we are having to balance high fuel prices 

with low power revenues. One of our facilities has been operating 

on an intermittent basis this year. 

As a company that operates under the Clean Air Act, we believe 

it is key to our being viewed as a good neighbor in our community, 

so we support it and we support its goals, but we do believe the 

EPA had a right to ask the courts for more time. We think the EPA 

had it right when they asked for more information, more data for 

the boiler and CISWI MACT rules. Not only did the paucity of data 

lead to some illogical outcomes in the regulatory process, it also 

meant that natural variation from boiler to boiler wasn’t properly 

considered, and even sort of the breakdown of different technologies for comparison purposes wasn’t done. Not only those 

things, but the method used by the agency to derive the emissions 

standard is seriously flawed. What they did was take pollutants on 

an individual basis and look at them across the various facilities, 

find the best emissions achievement and set that as a standard and 

then repeat the process. So the emissions standards were set really 

on a pollutant-by-pollutant basis as opposed to a facility-by-facility 

basis. This answers the question that Mr. Markey had as to why 

is it that achievable, currently existing technologies can’t be used. 

It is because this pollutant-by-pollutant process has been undertaken as opposed to the plant-by-plant. It is like asking the Olympic decathlon champion to not only win the championship but then 

beat each of the individual athletes in the 10 individual contests 

to be beaten as well by that decathlete. 

The agency also applied some statistical treatment for the data 

that is really detrimental to our being able to achieve compliance 

under the standards. So for example, in evaluating the data, it set 

its emission levels what we call 99 percent cutoff point. What that 

does for commercial industry solid waste incinerator is mean that 

a typical one with two units is likely in every single year to have 

a 20 percent probability that they are going to fail one of the emission standards. Now, I can just tell you, that is not the way to be 

a good neighbor and that is not a way for me to keep my job if that 

is how I perform for my company. So it truly is achievable and it 

is not something that I think the agency would be pleased in the 

final outcome of. 

There are a set of issues that this bill would address in the question of the definitions of waste. One of the elements that is not 

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under reconsideration by the agency and therefore can’t be addressed in this process, Mr. Green and the gentleman from Oregon 

also spoke to these questions, we have facilities, biomass facilities 

in the Central Valley of California that will be made into incinerators by the rules because traditional fuels like stumps from orchards and construction and demolition debris would be reclassified 

as waste. What will be the outcome of that? We will send those 

C&D wastes off to landfills. It is actually something I was talking 

with the senior NRDC staffer about doing the exact opposite of just 

a week ago and we will leave the stumps in the fields for the farmers to burn. That is why the California Air Resources Board actually opined to the agency that it thought it was on the wrong track 

for these MACT rules, and I will submit their comments for your 

record and my statement at that point, Mr. Chairman. 

[The prepared statement of Mr. Gilman follows:] 

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Mr. WHITFIELD. Thank you very much, Dr. Gilman. 

Mr. Walke, you are recognized for 5 minutes. 

STATEMENT OF JOHN D. WALKE 

Mr. WALKE. Thank you, Mr. Chairman and members of the subcommittee for the opportunity to testify today. My name is John 

Walke and I am Clean Air Director and Senior Attorney for the 

Natural Resources Defense Council. 

The two bills that are the subject of today’s hearing weaken the 

Clean Air Act drastically to authorize the indefinite delay of toxic 

air pollution standards for incinerators, industrial boilers and cement plants. Worse, these bills rewrite the Clean Air Act and overturn multiple Federal court decisions to eviscerate strong toxic pollution standards that under current law must be applied to control 

dangerous toxic emissions from these facilities. Industrial boilers 

and cement plants are some of the largest emitters of mercury and 

scores of other toxic pollutions that are still failing to comply with 

basic Clean Air Act requirements for toxic pollution over 2 decades 

after adoption of the 1990 Amendments. That is not responsible 

public policy. 

Were these standards to be delayed by even a single year by 

these two bills, the potential magnitude of extreme health consequences would be as follows: up to 9,000 premature deaths, 5,500 

nonfatal heart attacks, 58,000 asthma attacks and 440,000 days 

when people must miss work or school due to respiratory illness. 

Yet H.R. 2250 blocks mercury and air toxic standards for a minimum of 3.5 years, causing an additional 22,750 premature deaths, 

14,000 nonfatal heart attacks and 143,000 asthma attacks beyond 

what current law will prevent. 

By the same token, H.R. 2681 blocks mercury and air toxic safeguards for a minimum of nearly 5 years, causing an additional 

11,250 premature deaths, 6,750 nonfatal heart attacks and 76,500 

asthma attacks beyond what current law will prevent. EPA estimates that the value of the health benefits associated with the boiler standards and incinerators are between $22 billion to $54 billion 

compared with industry compliance costs estimated at only $1.4 

billion. EPA has found the benefits of the cements standards to be 

as high as $18 billion annually with benefits significantly outweighing costs by a margin of up to 19 to 1. Let me emphasize in 

the strongest possible terms that these bills are not mere ‘‘15- 

month delays of the rules as EPA itself has requested’’ as some 

have cast this legislation. 

First, the bills embody the complete evisceration of the substantive statutory standards for achieving reductions in toxic air 

pollution. The final sections of both bills eliminate the most protective legal standard for reducing toxic air pollution that has been in 

the Clean Air Act for nearly 21 years. The two bills replace this 

with the absolute least protective measure even mentioned in the 

law. It is not defensible policy and represents overreaching beyond 

the representations of the bills’ timing features. This single provision in both bills would have the effect of exempting incinerators, 

industrial boilers and cement plants from maximum reductions in 

toxic air pollution emissions in contrast to almost every other 

major industrial source of toxic air pollution in the Nation. Second, 

215 

the bill eliminates any statutory deadlines for EPA to reissue 

standards to protect Americans. Both steps are unprecedented in 

this committee or in any other legislation introduced in Congress, 

to my knowledge. 

I hope you will not vote for these bills, but if members have already decided to do so, I respectfully appeal to your sense of honesty and decency to do at least this: please explain clearly to your 

constituents, to the church congregations in your districts, to all 

Americans, why you are voting to actively eliminate protections for 

children and the unborn against industrial mercury pollution and 

brain poisoning. Especially those among you that are on record for 

protecting children and the unborn in other contexts, please explain why there is a double standard where it is acceptable to actively dismantle existing protections for children and the unborn 

against industrial mercury pollution. 

In closing, I urge you not to weaken the Clean Air Act so profoundly and cause so much preventable premature deaths, asthma 

attacks and mercury poisoning. I welcome any questions about my 

testimony, especially regarding any disagreements about factual or 

legal characterizations concerning the two bills. Thank you. 

[The prepared statement of Mr. Walke follows:] 

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Mr. WHITFIELD. Thank you, Mr. Walke. 

Mr. Schaeffer, you are recognized for 5 minutes for an opening 

statement. 

STATEMENT OF ERIC SCHAEFFER 

Mr. SCHAEFFER. Thank you, Mr. Chairman and members of the 

committee for the opportunity to testify. I am Eric Schaeffer, Director of the Environmental Integrity Project, an organization dedicated to improving enforcement of our environmental laws. I support the testimony of my colleague, John Walke, who has spent so 

many years fighting for the Clean Air Act. 

My own comments can be summarized as follows. As has been 

explained I think a number of times, the proposed legislation would 

do much more than delay standards for 15 months. They would 

prohibit EPA from setting any standards in less than 5 years after 

enactment of the legislation. They would authorize EPA to delay 

those standards indefinitely as in never, virtually do eliminate the 

deadlines, and they also change the basis for setting the standards, 

and those changes use language that the industry hopes will give 

them softer standards. These were arguments made in court that 

were rejected. The bill would give industry a second bite of the 

apple and change the way standards themselves are set, so this is 

not a short-term extension to deal with an economic emergency, it 

is a fundamental change to the law. I do not question the right of 

Congress to do that. It is absolutely the prerogative of the legislature. I just think it is important to be clear about what the bills 

would do. 

I also, to the extent—a suggestion has been made that the decisions reflect a rogue or runaway agency. I think that is unfair. The 

regulations that have been attacked in this hearing were generated 

by EPA after EPA first went to court to try to give industry in the 

last Administration much of what they wanted. Those earlier decisions were rejected by the D.C. Circuit Court of Appeals. They were 

rejected by judges appointed by President Reagan and by President 

George H.W. Bush, so this is not a sort of wild tear that EPA is 

on, this is an attempt to respond to decisions that have come down 

over the last decade made by pretty conservative jurists. Again, 

Congress has the right to respond to those by changing the law. I 

just think it is unfair to say that the EPA is somehow off the reservation by doing what the courts have in fact required them to do. 

Perhaps most importantly, I want to call into question this idea 

that if we relax standards and allow, you know, mercury emissions 

to stay the same or even increase, allow toxic emissions to increase, 

somehow that will be a significant force in reviving manufacturing, 

creating jobs, keying the economic recovery and conversely if we 

don’t do that we are going to hemorrhage jobs, you know, lose manufacturing competitiveness, see a flood of imports, threaten the economic recovery. I think the effects are much, much more complicated than that. There big, big macroeconomic forces at work. If 

you look at the cement kiln in particular using statistics from the 

U.S. Geological Service, who carries these numbers in their minerals yearbook and updates them every year, in the early 1990s we 

produced about 75,000 tons of cement with 18,000 workers. That 

production rose about 30 percent by 2006 to nearly 100,000 tons. 

247 

What happened to payroll? Ten percent of the employment in the 

industry was cut, the point being that the manufacturers did fine, 

employees not well. Jobs were cut at those plants. 

Second, the industry has suggested that somehow these rules 

would drive the price of cement up and that will threaten the economic recovery. I just want to point out that the price rose about 

50 percent at the beginning of the decade over a several-year period. It didn’t seem to have any impact on the construction boon, 

so I would treat that claim skeptically. Clearly, manufacturing has 

declined at these plants and so has employment over the last few 

years but imports have declined even faster, so this idea that imports are going to come rushing in where production is constrained 

is not borne out by the facts. I am just trying to make the point 

that the bottom-line problem is lack of demand. Until the demand 

recovers, until the housing market recovers, this industry will not, 

and the rules have little to do with that. 

I just want to close by saying that while this bill gives certainty 

to the industry that they won’t have to do anything for at least 5 

years and maybe never, it provides no certainty to people who live 

around these plants that something will be done about toxic emissions. I have not heard that concern expressed today at the hearing. I hope you will give it careful consideration. 

[The prepared statement of Mr. Schaeffer follows:] 

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Mr. WHITFIELD. Dr. Valberg, you are recognized for 5 minutes for 

an opening statement. 

STATEMENT OF PETER A. VALBERG 

Mr. VALBERG. Thank you. Good afternoon, Mr. Chairman and 

members of the subcommittee. Thank you for inviting me to testify 

this morning. I am Peter Valberg, Principal at Gradient, an environmental consulting firm in Boston. I have worked for many years 

in public health and human health risk assessment. I have been 

a faculty member at the Harvard School of Public Health and I was 

a member of a National Academy of Sciences panel that worked on 

evaluating public health benefits of air pollution regulations. 

At the outset, let us remind ourselves that by every public health 

measure from infant mortality to life expectancy, we are healthier 

today and exposed to fewer hazards than every before. Our 

present-day air is much cleaner than it was years ago thanks to 

EPA, and our air quality is among the best in the world. 

I am here today to address the method by which EPA uses in 

their projection of benefits from reductions in outdoor air particulate levels, called PM 2.5, or ambient PM 2.5. The dollar value of 

EPA’s calculated benefits is dominated by promised reductions in 

deaths that EPA assumes to be caused by breathing PM in our ambient air. Asthma is also monetized by EPA as an ambient air concern. 

In understanding health hazards, the solidity of our scientific 

knowledge like the solidity of a three-legged stool is supported by 

three legs of evidence. One leg is observational studies or epidemiology, another leg is experimental studies with lab animals, and 

the third leg is an understanding of biological mechanism. If any 

leg is weak or missing, the reliability of our knowledge is compromised. 

EPA uses the observational studies that examine statistics on 

two factors which in small part seem to go up and down together. 

These studies correlate changes in mortality, either temporally on 

a day-by-day basis or geographically on a city-by-city basis with differences in ambient PM from day to day or from locale to locale. 

Statistical associations are indeed reported, and EPA assumes PM 

mortality associations are 100 percent caused by outdoor PM no 

matter what the PM levels you may breathe in your own home, car 

or workplace. 

My points are, one, the mortality evidence doesn’t add up; two, 

most of our PM exposure is not from outdoor air; three, the PM statistical studies cannot identify cause; and four, outdoor PM is recognized as a minor, not a major cause of asthma. 

The evidence doesn’t add up. Lab experiments have carefully examined both human volunteers and animals breathing airborne 

dust at PM levels hundreds of times greater than in outdoor air 

without evidence of sudden death or life-threatening effects. Moreover, we have studied the chemicals that constitute the particles in 

outdoor air, and no one has found a constituent that is lethal when 

breathed at levels we encounter outdoors. Remember that the basic 

science of poisons, toxicology, has shown that the dose makes the 

poison. 

253 

Where do people get exposed to airborne dust? The majority of 

our time is spent indoors. Homes, restaurants, malls have high levels of PM from cleaning, cooking, baking and frying. When you 

clean out your attic or basement, you are breathing much higher 

PM levels than outdoors. We are exposed to high levels of PM when 

mowing lawns, raking leaves, enjoying a fireplace. Yet in spite of 

these vastly larger PM exposures, we have no case reports of people who died because of the dust they inhaled while cleaning or 

barbecuing. We can identify who died from car accidents, food poisoning, firearms and infections, but out of the tens of thousands of 

deaths that EPA attributes to breathing PM outdoors, we can’t pinpoint anyone who died from inhaling ambient PM. 

The models require intricate statistical manipulations. The computer models require many assumptions and adjustments. 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-pollutant factors that may confound those PM mortality associations. It is not clear that all confounders have been taken into account, and mere associations cannot establish causality. For example, increased heat stroke deaths 

are correlated with increased ice cream sales but none of us would 

suggest that ice cream sales cause heat stroke. In fact, there are 

many examples where spurious associations have been observed 

and dismissed. 

Finally, on asthma, medical researchers recognize that respiratory infections, mildew, dust, dust mites, pet dander and stress 

each play a far greater role in asthma than pollutants in ambient 

air. Among urban neighborhoods sharing the same outdoor air, 

both childhood and adult asthma vary considerably by location, and 

doctors investigating these patterns point to risk factors such as 

obesity, ethnicity, age of housing stock, neighborhood violence. 

Most importantly, over past decades, asthma has gone up during 

the very same time period that levels of all air pollutants outdoors 

have markedly gone down. This is opposite to what you would expect if outdoor PM caused asthma. 

Finally, taken together, there are major questions about EPA’s 

calculations of lives saved by small PM reductions in our outdoor 

air. Most importantly, neither animal toxicology or human clinical 

data validate these statistical associations from the observational 

epidemiology. How can it be that lower levels of exposure to outdoor PM are killing large numbers of people when our everyday exposures to higher levels of PM are not? 

Thank you. Thank you very much for this opportunity and I look 

forward to your questions. 

[The prepared statement of Mr. Valberg follows:] 

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Mr. WHITFIELD. Thank you, Dr. Valberg. 

Mr. Elliott, you are recognized for 5 minutes. 

STATEMENT OF TODD ELLIOTT 

Mr. ELLIOTT. Thank you, Chairman Whitfield, Ranking Member 

Rush and members of the subcommittee for allowing me this opportunity to testify before the subcommittee on a topic of substantial 

importance to my company and to the manufacturing sector. Again, 

my name is Todd Elliott. I represent the Celanese Corporation, 

where I have worked in a variety of positions for over 23 years. 

Celanese is a Dallas, Texas-based chemical company with a 

worldwide presence and a workforce of more than 7,250 employees. 

I am the General Manager of our global acetate business. Our acetate fibers plant in Narrows, Virginia, has been in operation since 

1939 and is the largest employer in Giles County. The facility currently employs more than 550 skilled workers and an additional 

400 contractors. The acetate facility in Narrows, Virginia, operates 

seven coal-fired boilers today and six boilers and furnaces that 

burn natural gas. The site is impacted by the cumulative and costly 

impacts of the boiler MACT and other State and Federal air quality regulations. 

While we fully intend to comply with this regulation, it is very 

important for Congress and the EPA to understand that we compete in a global marketplace. If our costs become too high, we must 

look at other options, other alternatives, or otherwise we can no 

longer compete effectively in the marketplace. 

A recent study conducted by the Council of Industrial Boiler 

Owners suggested that the boiler MACT regulation could impact 

almost a quarter-million jobs nationwide and cost our country more 

than $14 billion. We respectfully encourage you to promote cost-effective regulations that help create a U.S. manufacturing renaissance that preserves jobs our Nation so badly needs. 

My remarks today will focus on two key ways in which H.R. 2250 

addresses industry’s concern with the boiler MACT and directs 

EPA to develop requirements that are more reasonable but still 

will achieve the objectives of the rule. First, the compliance deadline of the boiler MACT should be extended to 5 years. The current 

rule essentially requires boilers and process heaters at major facilities to comply with stringent new air emissions standards for hazardous air pollutants within 3 years. Our engineering studies concluded that we will need to add emissions controls to our existing 

coal-fired boilers or convert those boilers to natural gas. Either alternative would require a very significant capital investment and 

time investment and could necessitate an extended plant outage 

while changes are implemented. The 3-year compliance window is 

too short a time to design, to install and commission the required 

controls or to convert to natural gas, particularly because the thirdparty resources with the necessary expertise will be in high demand as thousands of boilers would require modifications at the 

same time. 

At present, our Virginia facility has an existing natural gas line. 

However, this is too small as designed to deliver enough gas to 

meet anticipated demand if we convert to natural gas. Prior to operating new natural gas boilers, we would need to secure new gas 

258 

sourcing, pipeline delivery contracts, design and permit and construct a new pipeline. This would be particularly difficult for a facility like ours which is located in a rural and mountainous area 

and would take at least 3 years to install. Once natural gas is 

available to the facility, it could take another year to transition 

from coal to gas and to avoid a complete facility shutdown and the 

associated lost production and revenue. Extending the boiler MACT 

compliance deadline from 3 to 5 years as proposed in H.R. 2250 

would help ensure that Celanese and the manufacturing sector can 

achieve compliance. 

Second, the emissions standards must be achievable in practice. 

The current rule does not consider whether multiple emissions 

standards are achievable realistically and concurrently nor does it 

adequately address the variability of fuel supply or the real-world 

challenges of compliance with multiple standards at the same time. 

Under current requirements, compliance with these standards becomes an either/or exercise as it is often impossible to source a fuel 

that enables a manufacturer to meet all emissions standards at 

once. For example, we have been able to identify coals that meet 

either the hydrochloric acid or mercury emissions standards but 

not both. In addition, variations in the constituents of coal from the 

same mine or the same seam can further undermine efforts to meet 

stringent and inflexible standards. 

In summary, we support H.R. 2250 for the following reasons. It 

extends the compliance deadline to 5 years, which provides industry with enough time to identify and implement appropriate and 

economically viable compliance strategies and control operations, 

and it requires the EPA to take a more reasoned approach that 

emissions standards must be capable of being met in practice concurrently and on a variety of fuels before they are implemented. 

So on behalf of Celanese and our Narrows, Virginia, facility, 

thank you for the opportunity to provide these comments. 

[The prepared statement of Mr. Elliott follows:] 

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Mr. WHITFIELD. Thank you, Mr. Elliott, and thank all of you for 

your testimony. I will recognize myself for 5 minutes of questions. 

All of you heard the testimony of Ms. McCarthy, and I would ask 

each one of you, is there anything in her testimony that you particularly would like to make some comment about? Dr. Valberg? 

Mr. VALBERG. Yes. Well, I think that I want to just emphasize 

that I think EPA has done a very good job in cleaning up the air 

and so on and I am very much in favor of regulations that reduce 

air pollution. However, I think the problem is the monetization 

method. I mean, saying that these deaths are occurring as a consequence of small changes in outdoor air when in fact if you go to 

the medical community, we all have diseases that we get, all of us 

are going to die and so on, it is that monetization that I think is 

flawed and needs to include more of the scientific evidence besides 

just the statistical associations. 

Mr. WHITFIELD. Have you ever made those arguments with EPA 

that you question the way they calculate these benefits? 

Mr. VALBERG. Yes, I have. I have testified before EPA on some 

of the Clean Air Science Advisory Committee meetings that they 

have had together with EPA staff, and I think that they have become quite enamored of the statistical associations. 

Mr. WHITFIELD. And how widespread is the concern about the 

community that you are involved with on the validity of the EPA 

studies? 

Mr. VALBERG. Well, the statistical associations are just a correlation between numbers, so I don’t know that there is necessarily a 

question about is the statistics being done wrong. I think if you 

look at the original studies by the authors themselves, you will see 

in the beginning that they say the hypothesis is that there is a 

causal effect between ambient particulate and mortality, and they 

all treat it in the original literature as a hypothesis that is being 

tested. I think what EPA has moved these associations to is into 

this regulatory arena where they are using them as reliable. 

Mr. WHITFIELD. But if there is no causal connection, that would 

really invalidate their claims of benefits, wouldn’t it? 

Mr. VALBERG. Yes, it would 

Mr. WHITFIELD. And that is a major issue, and I read your biography and you are a real expert in this area, and you have genuine 

concerns about that. Is that correct? 

Mr. VALBERG. I think that the toxicology of the ambient air 

needs to be given more weight and that in fact our exposure to almost anything is dominated by other sources at school, at work, at 

home and so on, and ambient air needs to be as clean as possible. 

We in fact open the windows when we want to clean out the air 

in our offices or in our homes. But I think that attributing these 

hundreds of thousands of deaths to outdoor air is only supported 

by the statistical association. 

Mr. WHITFIELD. Well, you know, I think that is a very important 

point because we have had many hearings on these environmental 

issues and every time the representatives of the EPA will immediately run to the health benefits that you are going to prevent this 

thousand deaths, you are going to prevent premature deaths, you 

are going to prevent this many cases of asthma, you are going to 

prevent all of these things and yet from your testimony the very 

267 

basis of a lack of causal effect would basically invalidate all the 

benefits that they are really depending upon. 

Mr. VALBERG. Exactly, and in fact, there are some recent papers 

that refer to taking panels of people where you take them into the 

clinical setting, expose them to 100 or 200 micrograms per cubic 

meter, see if you see any kinds of effects, and then you also look 

at people in the ambient environment where the concentrations are 

10 to 20 micrograms per cubic meter, you still see the associations 

in the ambient environment but it is an effect that is occurring for 

other reasons besides the particulate matter itself because those 

people in the laboratory did not show the effects. 

Mr. WHITFIELD. You know, another concern that many of us have 

is that we have a very weak economy right now. We are trying to 

stimulate that economy, and while it is true that these boiler 

MACT and cement have not caused weakening of the economy, I 

have here a list of 13 new rules and regulations that EPA is coming out with, and the cumulative impact of that, it seems to me 

would definitely have an impact on our ability to create jobs. We 

are not arguing that it caused the loss of jobs but we are making 

the argument that at this particular time it creates obstacles in our 

ability to create new jobs. Would you agree with that, Mr. Harrington? 

Mr. HARRINGTON. Yes, I certainly would. I definitely agree with 

that, that from my standpoint, back to your original question, there 

are two areas that we would disagree. First of all, MACT is not 

available across our sector. There are no proven engineering technical solutions to achieve the NESHAP standards. That is point 

one. 

Point two is, there is absolutely not going to be job growth due 

to NESHAP or CISWI, absolutely not, not sustainable. There will 

be—there might be a short-term change to a bunch of consultants 

or a bunch of laboratories who will do some tests as we begin our 

permit and the process that we always follow to comply and to do 

better than we possibly can hope to do but at the end of all that 

transfer moving around, there will be less plants, period. 

Mr. WHITFIELD. Mr. Rush, you are recognized for 5 minutes. 

Mr. RUSH. Thank you, Mr. Chairman. 

Mr. Walke and Mr. Schaeffer, Dr. Valberg made some pretty controversial conclusions there. What do you have to say, each one of 

you? How do you respond to some of his assertions? 

Mr. WALKE. Mr. Rush, I would be happy after the hearing to submit numerous, dozens upon dozens of peer-reviewed statements 

showing effects, associations between particulate matter and premature mortality that contradict the testimony of Dr. Valberg. 

There are National Academy of Science studies that contradict it. 

The Clean Air Science Advisory Committee peer-review process and 

reports contradict those views. Those views are controversial because they are outlier views within the clean air scientific community. They were not accepted by the Bush Administration. They 

were not accepted by the Clean Air Science Advisory Council. They 

were not accepted by the Health Effects Institute reexamination of 

those associations. And I think it is important that that copious 

record of peer-reviewed studies be included in the record, and we 

268 

could also invite Dr. Valberg to include studies since there wasn’t 

a single one cited in his testimony that I saw. 

Mr. RUSH. Mr. Schaeffer? 

Mr. SCHAEFFER. If I could briefly provide some context for the 

particulate matter decision-making at EPA. The science that EPA 

is proceeding from, again with an epidemiological study looking at 

particulate levels in 26 cities and comparing that to especially premature mortality and screening out the confounding factors that 

Dr. Valberg raised—diet, income, the other things that can step in 

and interfere with trying to establish a relationship between pollution and disease—the benefits in EPA’s rulemaking you actually 

see in the hundreds of millions of dollars, those come from avoiding 

premature deaths. We can argue about what a life is worth, and 

I don’t know if Dr. Valberg wants to go there, but those premature 

mortalities occur over a long period of time. You can’t put somebody in a room and gas them with particulate matter in 15 minutes 

or even a day and draw any conclusions from that. The point is the 

long-term exposure. 

Congress ordered EPA to get those epidemiological studies peer 

reviewed. The agency went to the Health Effects Institute at the 

end of the last decade, late 1990s. The Health Effects Institute did 

an exhaustive review of the PM science, concluded it was solid, 

that is, that the link between PM exposure, particulate exposure, 

mortality was very strong. The Bush Administration looked at the 

same issue in 2005, did an exhaustive review, reached the same 

conclusions. 

So to suggest that this is something that is being done with a 

pocket calculator or the confounding factors aren’t being considered 

or that you can, you know, put a balloon over somebody’s head and 

fill it with particulate matter or that because nobody has, you 

know, died from sitting in front of a fireplace, that means fine particles aren’t a problem, honestly, those are outlandish statements. 

They are completely inconsistent with decades of science, not just 

a recent decision. You know, I challenge the witnesses to produce 

peer-reviewed studies that show that, and we will certainly provide 

you with the data that EPA has gathered under three Administrations to establish that very strong connection between fine particles, not big chunky particles from barbecuing steak, fine particles, and death. 

Mr. RUSH. I just want to really remind the committee that the 

Bush Administration did draft a report that was finalized by the 

Obama Administration, and it is called the Integrated Science Assessment for Particulate Matter, and this report evaluated the scientific literature on human health effects associated with exposure 

to particulate matter. It was based on dozens of peer-reviewed 

studies. It had more than 50 authors and contributors and literally 

scores of peer reviewers, and this report was also subject to extensive external review and commentary, and this scientific effort provides the basis for EPA’s analysis of the effects of particulate matter. Were you referring to this report? 

Mr. WALKE. Yes, Mr. Rush. It is dated 2009. I would be happy 

to submit it to the record, and it finds ‘‘there is a causal relationship between PM–2.5 and mortality both for short-term and longterm exposures.’’ That is in an EPA report dated 2009, but as you 

269 

said, it reaffirms studies that were undertaken first under the 

Bush Administration. 

Mr. RUSH. Thank you, Mr. Chairman. I yield back. 

Mr. WHITFIELD. Mr. Sullivan, you are recognized for 5 minutes. 

Mr. SULLIVAN. Thank you, Mr. Chairman. I was going to see if 

Dr. Valberg would like to comment on what was just said. 

Mr. VALBERG. Yes, I would. I think the associations that are reported by the statistics are indeed out there but I think that there 

are a lot of problems with those associations even beyond the fact 

that they are not reflected in laboratory experiments and even in 

clinical experiments. I think that the actual associations are after 

all on a day-by-day basis. The so-called time series studies look at 

day-by-day changes in particulate levels and look at day-by-day 

changes in mortality so they are looking at short-term things, and 

when you try to take that hypothesis to the laboratory, you can’t 

validate it. 

The associations themselves have peculiar characteristics such as 

the steepness of the association. In other words, what kind of increment do you get with a given increment of particulate matter actually gets steeper as the air concentrations get cleaner. In other 

words, as particulate levels go down, this is reported time and time 

again in these associations, and this goes contrary to what you 

would expect on a toxicological basis. The association should in fact 

get stronger as the air gets dirtier and so that as you get the higher levels, then you are getting a larger effect because the dose 

makes the poison. 

So I think I don’t disagree that there are many associations out 

there and in fact the very reporting of such associations in such a 

variety of diverse circumstances where the actual chemical composition of the particulate is quite different in a way is also something that actually does more to undermine their plausibility than 

to support it. 

Mr. SULLIVAN. Thank you. 

And this next question is for Mr. Rubright, Dr. Gilman and Mr. 

Elliott. EPA has maintained that boiler MACT rules will result in 

a net gain of jobs. Do you agree with the EPA that the net effect 

of EPA’s boiler MACT rules as written will be to gain jobs in the 

United States? 

Mr. RUBRIGHT. Thank you for asking that question because we 

observe the jobs that will be created are temporary jobs associated 

with the installation and capital. The jobs that will be eliminated 

with the closure of facilities are permanent losses. So the net 

change is dramatically worse. 

Mr. GILMAN. My observation would be, as they were promulgated, they won’t have that effect. Our eight plants are sort of a 

microcosm of that. I would like to think that a dialog between yourselves and the agency would do, as has happened so many times 

in the Clean Air Act, result in a path forward that indeed could 

have least impact on jobs and provide for a cleaner environment as 

well. 

Mr. SULLIVAN. Mr. Elliott? 

Mr. ELLIOTT. We would agree and echo the comments of the 

other panelists that we think about capital investment in various 

categories. We think about EHSA, or environmental health and 

270 

safety capital, maintenance of business capital, revenue generation 

capital. We would categorize this capital as non-discretionary and 

it would be in a different league. So perhaps jobs on a temporary 

basis for engineering consultancy and potentially jobs outside of the 

United States. 

Mr. SULLIVAN. Thank you. 

Mr. Chairman, I would like to submit for the record an analysis 

referenced by Mr. Harrington, which was prepared by Portland Cement Association regarding the impacts of EPA’s rules on the cement sector. 

Mr. WHITFIELD. Without objection. 

[The information follows:] 

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Mr. SULLIVAN. Mr. Harrington, you have testified that EPA’s recent rules affecting the cement sector could force the closure of 18 

out of nearly 100 U.S. cement plants, or 20 percent of the U.S. cement production capacity. Where are most of these cement plants 

located? Are they like in small towns, rural areas? 

Mr. HARRINGTON. Yes, they are mostly in small towns in rural 

areas, and they are sprinkled throughout the United States. I 

mean, there is one in upper California. There might be one in Ohio. 

There could be one in upper New York State. There could be one 

in Illinois. So they are spread throughout the United States. They 

are always in small rural areas, as Mr. Rubright said, and it is a 

company town. It is not quite like it was in the 1930s and 1940s 

but that is sort of the environment that our plants are in. 

Mr. SULLIVAN. Will the employees at these facilities be likely to 

find new work elsewhere in their communities? 

Mr. HARRINGTON. Anything is possible, and of course, we would 

like that to be the case, but 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. 

The other thing that we lose, and I am sorry to keep rambling 

here, but there are a series of small businesspeople and large industry that service our plants—contractors, engineers—sorry. 

Mr. WHITFIELD. No, go ahead. 

Mr. HARRINGTON. Contractors, engineers, local wall material suppliers who may not be employees of our plant but who exist—Pennsylvania, for sure—who exist because of our plants. 

Mr. SULLIVAN. Also—— 

Mr. WHITFIELD. Your time is expired. 

Mr. Doyle, you are recognized for 5 minutes. 

Mr. DOYLE. Thank you, Mr. Chairman, and thank you to our witnesses today. I think it is important that we have a well-informed 

debate on these regulations with inputs from all sides. 

As many of you know, I represent Pittsburgh, which is in Allegheny County in southwestern Pennsylvania. Allegheny County is 

home to manufacturing industry, chemical industry, steel industry, 

energy industry and much, much more, and like all of you, many 

of these companies have voiced concerns to me with some of the 

regulations coming out of the Environmental Protection Agency. 

Most specifically, I have heard a great deal about the boiler MACT 

rules that we are discussing today. 

But let me first give you a little background on Allegheny County. Last year, the Pittsburgh Post Gazette ran a series of air pollution effects in the region called Mapping Mortality. In it, they told 

us in Allegheny County air pollutants are generated by 32 industries and utilities classified by the county health department as 

major sources because they emit or have the potential to emit 25 

tons or more a year of a criteria pollutant, or 10 times or more of 

hazardous air pollution. The Post Gazette article went further to 

detail in Allegheny County and research mortality rates not only 

in our county but in the 13 counties surrounding Allegheny County 

309 

in and around Pittsburgh. This is what they found: that in all 14 

counties that have heart disease, all 14 counties have heart disease 

mortality rates exceeding the national average. Twelve of the 14 

counties have respiratory disease mortality rates exceeding the national average. Three of the 14 counties have lung cancer mortality 

rates exceeding the national average, and 13 of 14 have a combined 

mortality rate for all three diseases in excess of the combined national expected rates for the three. 

So as you can see, I have cause to take these regulations very 

seriously. I recognize that the boiler MACT rule issued in February 

wasn’t perfect. I know that the industries in southwestern Pennsylvania are providing good-paying jobs for my constituents. But the 

mortality rates due to heart, respiratory and lung disease can’t be 

ignored. For me and my constituents, the issue is not a political 

football that we should toss around in Washington. This is real and 

it is a matter of life and death. 

So I just have one question for Mr. Rubright, Mr. Gilman and 

Mr. Elliott. The Clean Air Act already gives you 3 years to comply 

with the possibility of a fourth year. If you can’t do it in three, you 

can petition your State. I don’t think the folks in my district believe that it should take 5 years or, in the case of this bill, 5 years 

being the minimum and we don’t know what the maximum would 

be, to deal with reining in some of these pollutants, and I understand there are specific issues with the final rule and I think they 

need to be worked out, and I am for doing that, for EPA, sitting 

with you and working out these issues sufficiently when they repropose the final 15 months. 

My question is, once that is done, would you be willing to accept 

a deadline within the Clean Air Act of 3 to 4 years? 

Mr. RUBRIGHT. I would like to—there are a couple of things. 

First, relative to your indication of the health risks, please understand that particulate matter is already regulated under the National Ambient Air Quality Standards, and nine of the 10 virgin 

mills that we operate are currently in attainment zones and yet 

they are being regulated under a statute that wasn’t intended to 

regulate particulate matter as a health risk as a particulate matter 

without regard to whether they are in an attainment zone or a 

non-attainment zone. So it is a rule that really is inapplicable in 

many respects to the current environment. 

Mr. DOYLE. My question is, once they do this re-proposing of the 

rules and address some of these concerns, do you need more than 

4 years to comply? 

Mr. RUBRIGHT. Well, certainly. I have already indicated we wasted $80 million to comply with the rule that was rescinded. You 

heard Ms. McCarthy testify that she doesn’t know of a cement plan 

that can comply with the rules today. We know that 2 percent of 

the pulp and paper mills today can comply with the standards that 

apply. Now, my understanding of the act is that maximum achievable control technology is what 12 percent of the existing mills can 

comply with. So do you think there is going to be litigation of this 

rule? I think this rule is going to be litigated and I think Ms. 

McCarthy’s testimony is going to be admitted in that litigation. So 

we are going to have some period of time where again we are going 

to be required to spend money on a rule which is in litigation. 

310 

So apart from the fact that our best technological people are telling me we can’t do it in 3 years, I certainly know I am going to 

be doing in advance of the resolution of this rule. So think it just 

doesn’t make any sense to spend money that in the face of—— 

Mr. DOYLE. Do you think it should be addressed at all? Do you 

think there is a health concern and that the concern over health 

warrants your company doing something to reduce these pollutants? 

Mr. RUBRIGHT. Please understand, where we understand that 

there is an identifiable health risk, we do everything we can today. 

What I am saying to you is, there is nothing we know we can do 

to comply with these rules, but I also have indicated that I think 

there is a scientific debate with respect to specific effects of particulate emissions of our plants in rural attainment areas. 

Mr. DOYLE. Dr. Gilman? 

Mr. GILMAN. I would say yes if one of those things that isn’t part 

of the reconsideration process now because the agency feels constrained by prior judicial decisions, that is, the pollutant-by-pollutant approach versus the plant-by-plant approach. That is what 

makes these unachievable. That is what introduces a technological 

barrier to implementing achievable standards. 

Mr. DOYLE. Mr. Chairman, you have been generous with my 

time. I appreciate it. 

Mr. WHITFIELD. Thank you. 

We have two votes on the floor and we only have like a minute 

left, Morgan, and I know some other members want to ask questions, so you all might as well just spend the day with us. So if 

you wouldn’t mind, we will recess. We only have two votes, and the 

time is expired on the first one, so we will back, I would say in 

about 15 minutes, and we will reconvene and finish up the questions at that time. Thank you. 

[Recess.] 

Mr. WHITFIELD. I am going to now recognize the gentleman from 

Virginia, Mr. Griffith, for his 5 minutes of questions and then when 

you all come in we will go to you. 

Mr. GRIFFITH. Thank you all very much for your patience with 

us. Sometimes we have to run off and cast votes, and I appreciate 

you all waiting. 

I do want to say that this is important legislation. Both pieces 

are extremely important to my district. I don’t want to underestimate it but I also have to point out that in the hearings that we 

had earlier this year and the hearings that we have now, we have 

had testimony from people who employ folks in Giles County. 

Thank you, Mr. Elliott, as the largest employer in that county, 

which is in the 9th district of Virginia, which I am very proud to 

represent. We have had testimony from Titan America, which is a 

Roanoke cement facility, employs people who live in the 9th district 

of Virginia. We have had testimony from MeadWestVaco at their 

Covington facility, which employs people in the 9th district of Virginia. And we had testimony earlier today from Mr. Rubright of 

RockTenn, which employs people in the Martinsville area, which 

include people in the 9th district of Virginia. 

So when folks say to me, you know, why do you get worked up 

about this and why do you charge in on some of these things, all 

311 

I can say is that a lot of these folks didn’t actually come from the 

9th district of Virginia but they represent jobs in the 9th district 

of Virginia and they represent people who work there and people 

who are in the areas where we have double-digit unemployment 

and, you know, I came off this break doing the Labor Day parade 

in Covington, which is sponsored by the union there, and last year 

they had the parade route lined with signs about fixing boiler 

MACT, so amongst all the political signs were, you know, we have 

got to fix boiler MACT, and so I am trying to do what my constituents want and what I think my constituents need in order to create 

jobs not only in the United States of America but in particular in 

the 9th district of Virginia, and I think that that is what the boiler 

MACT does, that is what the cement MACT bill that we have before us today for testimony. 

So, you know, I understand all of you want to be careful in the 

health side of it but when you face extensive unemployment in the 

regions that I have just mentioned and already have had announced lost jobs from other rules of the EPA in Giles County in 

particular and in Russell County within the 9th district of Virginia 

within the last 2 or 3 months, these are serious matters. 

And so I would ask you, Mr. Elliott, in regard to jobs, if you don’t 

have the 5 years to comply—and you touched on it in your statement some about the fact that you don’t have a big enough gas line 

to flip over to natural gas and you have a big river beside your facility as well. Exactly, you know, do you need the 5 years or is 

there a significant potential that those jobs because of costs may 

go elsewhere? 

Mr. ELLIOTT. Well, I think all business management is tasked 

with continuous evaluation of options, you know, what are the best 

cases for growing and protecting our business, so we always look 

at alternatives, whether that is alternatives for our facilities in the 

United States or throughout the world. We like to focus on 

timelines. I know that is important. But that is part of the issue 

here. There was a lot of testimony about flexibility around fuel 

source, at least I talked about the unknown questions still or answers with respect to fuel source, fuel variability. That is very specific to coal. So we still—we are operating several coal-fired boilers 

today so we want to resolve whether we can sort out whether we 

can use certain coals to meet certain standards, so that is going to 

take some time. So I am happy to get into the specifics once we 

hear back from the EPA exactly how we will resolve that. 

That then sets the stage one way or the other whether we then 

have to look at Plan B. Plan B might be installation of natural gas 

boilers. That is yet another exercise, another engineering effort to 

then go into the work that would require a 30-odd-mile natural gas 

line through the mountains of Virginia ultimately. So that is another phase of work that requires engineering, requires estimates 

and timing and right-of-ways and factors in as well. 

Then we get to the ultimate question which I think is where you 

are going, Mr. Griffith, and that is then what do you do, and really 

depends on the certainty around those choices, the costs and capital associated with those, the resulting operating costs of those decisions. 

Mr. GRIFFITH. My time is running out, so let me cut to the chase. 

312 

Mr. ELLIOTT. Yes. 

Mr. GRIFFITH. If you only get the 3 years, is it not true that you 

are more likely to have to make a decision to reduce jobs in Giles 

County than if you have the 5 years proposed in the bill? 

Mr. ELLIOTT. Yes, I am not sure we could address the regulation 

as written within the time—— 

Mr. GRIFFITH. As written, you might have no choice but to move 

those jobs somewhere else no matter the longstanding commitment 

to Giles County which exceeds, what, 79 years? 

Mr. ELLIOTT. Or significantly scale back operations, change operations, look at a footprint alteration. 

Mr. GRIFFITH. Thank you, Mr. Chairman. I yield back. 

Mr. WHITFIELD. At this time I will recognize Mr. Olson from 

Texas for 5 minutes. 

Mr. OLSON. I thank the chairman, and I have just got a couple 

of questions I just would like to pose to all the panelists, and a lot 

of this was targeted to Mr. Rubright, and of course he had to leave, 

but I have some concerns. Again, thank you guys for coming. 

Just to let you guys know where I am coming from, my dad spent 

his entire working career in the forest and paper industry, so I 

have seen, I know as Mr. Rubright said, that the industry has gone 

through some, quote, unquote in his testimony, trying economic 

times, and I have seen it firsthand. My father worked for a large 

paper company, Champion Papers. They had a mill there on the 

Houston ship channel. He worked for the longest part of his career 

at anyone place over a decade, and that facility no longer exists because it couldn’t compete in the global market. Lots of reasons for 

that. But again, when I see the fact that they have lost thousands 

of jobs, they have this blank spot there along the Houston ship 

channel that is not being used to create jobs and turn our economy 

around, I get concerned. I get concerned that some of the regulations and that this Administration is pushing this Environmental 

Protection Agency, they are hurting our economy right here and inhibiting the growth of job creation that we were seeking to have. 

My question for all of you guys, are there any boilers in your facilities that in your experience are capable of complying with the 

boiler MACT standard issued by EPA in March of 2011? Anybody 

out there can hit the target right now? I will start at the end. Mr. 

Elliott? 

Mr. ELLIOTT. I think it was acknowledged earlier, Mr. Green 

asked the question. In some cases we were actually identified by 

the EPA as having some of the top-performing units around that 

help set of the regulatory standards for hydrochloric acid and mercury. However, even our best performing boilers can’t meet both simultaneously. 

Mr. OLSON. But that was Mr. Green’s point. You guys are the 

best performers and yet you can’t hit the standards? 

Mr. ELLIOTT. Yes, simultaneously. 

Mr. OLSON. Dr. Valberg? 

Mr. VALBERG. I would concede any type to the actual people who 

run the facilities. 

Mr. OLSON. Well said. I do that a lot of times myself. 

Mr. Schaeffer? 

313 

Mr. SCHAEFFER. I think you are addressing the question to companies that are operating boilers, so I will—— 

Mr. OLSON. Well, in your experience in the industry—I mean, 

you are obviously an expert witness. You are here to testify before 

this committee, so are you aware of any boiler out there that can 

comply with the standards right now? 

Mr. SCHAEFFER. Well, I went through the particulate matter 

standards, which are the surrogate for toxic metals, and it looked 

like an awful lot of facilities were currently meeting the standard. 

I haven’t gone through all the limits to check that. 

Mr. OLSON. OK. Mr. Walke? 

Mr. WALKE. EPA has identified boilers that can meet the standards, and I will be happy to get that information to supplement the 

record. Natural gas boilers under the standards for major sources 

and area sources can easily meet the standards. They are simple 

tune-up requirements, really, not emission limits, and so we can 

supplement the record with that information as well. 

Mr. OLSON. That side comment there, that makes my argument 

for why we need to increase natural gas production here in this 

country. EPA is trying to thwart that, at least having some study 

done on hydraulic fracturing, the process that has basically revolutionized the gas resource we have in this country. I mean, that is 

a great, great point that you made, Mr. Walke. 

Dr. Gilman? 

Mr. GILMAN. The agency is on the right track for the smaller 

boilers, the area source boilers. It is the large boilers and the problem goes back to this, you don’t get to just pass one emissions 

standard, you have to pass them all, and you have to be the best 

at all, and none of our facilities—if we put in the best technology 

available today, I can’t guarantee to my management that we will 

meet the standard. So as long as we are evaluating these emissions 

standards on this pollutant-by-pollutant basis rather than looking 

for the overall performance of the plant, we won’t make it. 

Mr. OLSON. That sounds like an issue we are having with the 

EPA in terms of flexible permitting process for our refineries and 

our power plants. We are basically—our system in Texas had five 

different regulated sources, emission sources. We could be over in 

one but we had to be significantly under in the other four so that 

the combination was what really matters and unfortunately EPA 

has taken that from us, and it sounds like that would be something 

very beneficial to you, Dr. Gilman, some system like that. 

Mr. Harrington, down at the end, last but certainly not least, sir. 

Mr. HARRINGTON. I really can’t comment on the boilers but I can 

comment on the cement, and there is not one plant in the United 

States that meets the NESHAP regulation because of the, as Dr. 

Gilman pointed out, the four specific elements. We might be good 

in one, bad on another, not too good here, good over there, and it 

varies from coast to coast from the top of the border to the bottom 

of the border across the United States. 

Mr. OLSON. So a flexible permitting system like we had in Texas 

would address your concerns as well? 

Mr. HARRINGTON. It would be a great help. 

314 

Mr. OLSON. And again, it has been demonstrably cleaner air 

since the system has been in process 15 years, and again, last year 

the EPA took it over from us. 

I have run out of time. I thank the chair. Yield back. 

Mr. WHITFIELD. Mr. Green, you are recognized for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

Mr. Walke, in your testimony you write that it is important to 

recognize the EPA always has set maximum achievable control 

technology standards on this very same pollutant-by-pollutant 

basis for the over 100 MACT standards it has set under each Administration since adoption in the 1990 Amendments. You go on to 

say that the plain language of the Clean Air Act compels the EPA 

pollutant-by-pollutant approach and industries’ contorted arguments that have not succeeded in court or appeals to different Administrations should not be embraced by Congress to produce dramatically weaker emissions standards. But how do you reasonably 

do a pollutant-by-pollutant approach without ending up with what 

has been termed a Franken plant, a plant that even with some of 

the top performers like Mr. Elliott’s in Virginia are not in compliance? 

Mr. WALKE. Well, you do it with pollution control measures that 

are able to successfully meet all the limits as has been the case in 

those 100-plus standards including for oil refineries and chemical 

plants in Texas, Mr. Green, and, you know, this argument just 

strikes me as kind of a straw man since it is never been one even 

taken seriously by, you know, three Bush Administration terms or 

two Clinton Administration terms because those standards were all 

able to be met without resulting in the apocalyptic consequences 

that people are claiming. 

Mr. GREEN. Well, some of your colleagues on the panel talk about 

they cannot design, install and commission emissions controls on 

their existing coal-fired boilers within 3 years. They claim that it 

is particularly true because third-party resources with expertise to 

design and install these controls will be in high demand as multiple boiler rules are being implemented in a short-term period of 

time by both the industry and electric utility industries. Do you 

share that concern? 

Mr. WALKE. Well, that is a very different concern, and if there 

are concerns about the ability to install the controls within 3 years, 

the Clean Air Act provides an additional year, an fourth year for 

that happen. 

I would like to note in responding to a question that Mr. 

Whitfield asked earlier of the panelists, EPA is slated to finalize 

this boiler stands in April of 2012. If you listen carefully to what 

Ms. McCarthy said, it is within their power to extend the compliance deadlines to start 3 years from that period with an additional 

fourth year for this additional period of controls that I just mentioned. So we are already looking at 2016 under the Clean Air Act, 

which is exactly 5 years from now, from 2011. The Clean Air Act 

has the flexibilities and the administrative tools necessary to allow 

EPA to give sufficient time to comply with these standards, and I 

think we should let that responsible process work. 

Mr. GREEN. Mr. Harrington, some of my cement companies have 

talked about how the subcategorization of the fuels is the crux of 

315 

the issue for their industry and that EPA should have used better 

discretion here. Do you agree with this statement, and if so, can 

you elaborate? 

Mr. HARRINGTON. It is very much a plant-by-plant decision and 

issue. We do agree with subcategorization. A lot of the issue still 

comes back to uncertainty—will it be accepted, will it not be, is 

there a positive dialog where real, true information is passed back 

and forth and is accepted. So we can have dialog and we can propose different things and there is always politeness and a spirited 

and professional discussion but then we go back and then things 

don’t happen. So we continue to look at the clock and look at the 

calendar and understand what the regulations are and have to go 

back and plan for our fuel sources, for our capital investment 

needs, even how we operate our kilns. So I do agree with that 

issue. 

Mr. GREEN. Mr. Elliott, in your testimony you say that making 

it cost prohibitive to burn alternative fuels, the current rule would 

force industry to pay excessive prices for natural gas will curtail 

production. I know that natural gas is the cheapest it has been for 

decades almost now and can you elaborate on that? 

Mr. ELLIOTT. Well, this is a particular note around curtailment, 

and we would like it to be more clear ultimately in the regulation 

that if, for example, a plant like ours converts to natural gas, if we 

have to curtail for residential heating or something like that, that 

we would have the wherewithal to convert temporarily to a backup 

fuel like fuel oil, for example, and that we would not then have to 

meet specific regulation standards for that particular source of fuel. 

So it is a very specific point around curtailment and flexibility on 

a temporary basis to have that flex fuel option, and I think that 

is probably fairly common with industrial boiler operators. 

Mr. GREEN. Well, I would hope we have enough natural gas now 

that has been developed that we wouldn’t have to worry about curtailment, particular in fuel oil, because I know that is also another 

issue on the East Coast. 

Mr. ELLIOTT. It is just not crystal clear at this point that that 

flexibility exists. 

Mr. GREEN. Thank you. 

Thank you, Mr. Chairman. 

Mr. WHITFIELD. Thank you, and I see no one else, so I want to 

thank all of you for taking time and giving us your expert opinions 

on these pieces of legislation. We look forward to working with all 

of you as we consider whether or not we are going to move forward 

with them. 

With that, we will terminate today’s hearing, and we will have 

10 days for any member to submit additional material and questions. 

So thank you all very much for being with us today and we appreciate your patience. 

[Whereupon, at 2:22 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

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