99–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 112–225 

EPA REGULATORY RELIEF ACT OF 2011 

SEPTEMBER 26, 2011.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2250] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 2250) to provide additional time for the Administrator of the Environmental Protection Agency to issue achievable 

standards for industrial, commercial, and institutional boilers, 

process heaters, and incinerators, and for other purposes, having 

considered the same, report favorably thereon with an amendment 

and recommend that the bill as amended do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 3 

Background and Need for Legislation .................................................................... 4 

Hearings ................................................................................................................... 13 

Committee Consideration ........................................................................................ 14 

Committee Votes ...................................................................................................... 14 

Committee Oversight Findings ............................................................................... 18 

Statement of General Performance, Goals and Objectives ................................... 18 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 18 

Earmark ................................................................................................................... 18 

Committee Cost Estimate ....................................................................................... 18 

Congressional Budget Office Estimate ................................................................... 18 

Federal Mandates Statement ................................................................................. 19 

Advisory Committee Statement .............................................................................. 19 

Applicability to Legislative Branch ........................................................................ 19 

Section-by-Section Analysis of Legislation ............................................................ 19 

Changes in Existing Law Made by the Bill, as Reported ..................................... 21 

Dissenting Views ..................................................................................................... 22 


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AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘EPA Regulatory Relief Act of 2011’’. 

SEC. 2. LEGISLATIVE STAY. 

(a) ESTABLISHMENT OF STANDARDS.—In place of the rules specified in subsection 

(b), and notwithstanding the date by which such rules would otherwise be required 

to be promulgated, the Administrator of the Environmental Protection Agency (in 

this Act referred to as the ‘‘Administrator’’) shall— 

(1) propose regulations for industrial, commercial, and institutional boilers 

and process heaters, and commercial and industrial solid waste incinerator 

units, subject to any of the rules specified in subsection (b)— 

(A) establishing maximum achievable control technology standards, performance standards, and other requirements under sections 112 and 129, 

as applicable, of the Clean Air Act (42 U.S.C. 7412, 7429); and 

(B) identifying non-hazardous secondary materials that, when used as 

fuels or ingredients in combustion units of such boilers, process heaters, or 

incinerator units are solid waste under the Solid Waste Disposal Act (42 

U.S.C. 6901 et seq.; commonly referred to as the ‘‘Resource Conservation 

and Recovery Act’’) for purposes of determining the extent to which such 

combustion units are required to meet the emissions standards under section 112 of the Clean Air Act (42 U.S.C. 7412) or the emission standards 

under section 129 of such Act (42 U.S.C. 7429); and 

(2) finalize the regulations on the date that is 15 months after the date of 

the enactment of this Act. 

(b) STAY OF EARLIER RULES.—The following rules are of no force or effect, shall 

be treated as though such rules had never taken effect, and shall be replaced as 

described in subsection (a): 

(1) ‘‘National Emission Standards for Hazardous Air Pollutants for Major 

Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters’’, published at 76 Fed. Reg. 15608 (March 21, 2011). 

(2) ‘‘National Emission Standards for Hazardous Air Pollutants for Area 

Sources: Industrial, Commercial, and Institutional Boilers’’, published at 76 

Fed. Reg. 15554 (March 21, 2011). 

(3) ‘‘Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units’’, published at 76 Fed. Reg. 15704 (March 21, 2011). 

(4) ‘‘Identification of Non-Hazardous Secondary Materials That Are Solid 

Waste’’, published at 76 Fed. Reg. 15456 (March 21, 2011). 

(c) INAPPLICABILITY OF CERTAIN PROVISIONS.—With respect to any standard required by subsection (a) to be promulgated in regulations under section 112 of the 

Clean Air Act (42 U.S.C. 7412), the provisions of subsections (g)(2) and (j) of such 

section 112 shall not apply prior to the effective date of the standard specified in 

such regulations. 

SEC. 3. COMPLIANCE DATES. 

(a) ESTABLISHMENT OF COMPLIANCE DATES.—For each regulation promulgated 

pursuant to section 2, the Administrator— 

(1) shall establish a date for compliance with standards and requirements 

under such regulation that is, notwithstanding any other provision of law, not 

earlier than 5 years after the effective date of the regulation; and 

(2) in proposing a date for such compliance, shall take into consideration— 

(A) the costs of achieving emissions reductions; 

(B) any non-air quality health and environmental impact and energy requirements of the standards and requirements; 

(C) the feasibility of implementing the standards and requirements, including the time needed to— 

(i) obtain necessary permit approvals; and 

(ii) procure, install, and test control equipment; 

(D) the availability of equipment, suppliers, and labor, given the requirements of the regulation and other proposed or finalized regulations of the 

Environmental Protection Agency; and 

(E) potential net employment impacts. 

(b) NEW SOURCES.—The date on which the Administrator proposes a regulation 

pursuant to section 2(a)(1) establishing an emission standard under section 112 or 


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129 of the Clean Air Act (42 U.S.C. 7412, 7429) shall be treated as the date on 

which the Administrator first proposes such a regulation for purposes of applying 

the definition of a new source under section 112(a)(4) of such Act (42 U.S.C. 

7412(a)(4)) or the definition of a new solid waste incineration unit under section 

129(g)(2) of such Act (42 U.S.C. 7429(g)(2)). 

(c) RULE OF CONSTRUCTION.—Nothing in this Act shall be construed to restrict or 

otherwise affect the provisions of paragraphs (3)(B) and (4) of section 112(i) of the 

Clean Air Act (42 U.S.C. 7412(i)). 

SEC. 4. ENERGY RECOVERY AND CONSERVATION. 

Notwithstanding any other provision of law, and to ensure the recovery and conservation of energy consistent with the Solid Waste Disposal Act (42 U.S.C. 6901 

et seq.; commonly referred to as the ‘‘Resource Conservation and Recovery Act’’), in 

promulgating rules under section 2(a) addressing the subject matter of the rules 

specified in paragraphs (3) and (4) of section 2(b), the Administrator— 

(1) shall adopt the definitions of the terms ‘‘commercial and industrial solid 

waste incineration unit’’, ‘‘commercial and industrial waste’’, and ‘‘contained 

gaseous material’’ in the rule entitled ‘‘Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and 

Industrial Solid Waste Incineration Units’’, published at 65 Fed. Reg. 75338 

(December 1, 2000); and 

(2) shall identify non-hazardous secondary material to be solid waste only if— 

(A) the material meets such definition of commercial and industrial 

waste; or 

(B) if the material is a gas, it meets such definition of contained gaseous 

material. 

SEC. 5. OTHER PROVISIONS. 

(a) ESTABLISHMENT OF STANDARDS ACHIEVABLE IN PRACTICE.—In promulgating 

rules under section 2(a), the Administrator shall ensure that emissions standards 

for existing and new sources established under section 112 or 129 of the Clean Air 

Act (42 U.S.C. 7412, 7429), as applicable, can be met under actual operating conditions consistently and concurrently with emission standards for all other air pollutants regulated by the rule for the source category, taking into account variability 

in actual source performance, source design, fuels, inputs, controls, ability to measure the pollutant emissions, and operating conditions. 

(b) REGULATORY ALTERNATIVES.—For each regulation promulgated pursuant to 

section 2(a), from among the range of regulatory alternatives authorized under the 

Clean Air Act (42 U.S.C. 7401 et seq.) including work practice standards under section 112(h) of such Act (42 U.S.C. 7412(h)), the Administrator shall impose the least 

burdensome, consistent with the purposes of such Act and Executive Order 13563 

published at 76 Fed. Reg. 3821 (January 21, 2011). 

PURPOSE AND SUMMARY

H.R. 2250, the ‘‘EPA Regulatory Relief Act of 2011,’’ was introduced by Rep. Morgan Griffith (together with Reps. Butterfield, 

Olson, Barrow, McMorris Rodgers, Ross, Scalise and Matheson) on 

June 21, 2011. The legislation gives the Environmental Protection 

Agency additional time and guidelines to develop achievable rules 

under the Clean Air Act governing emissions of hazardous air pollutants from industrial, commercial, and institutional boilers, process heaters, and incinerators. 

Key provisions of the bill would: 

• Provide EPA with 15 months to re-propose and finalize 

achievable rules for boilers, process heaters, and incinerators; 

• Extend compliance deadlines from 3 years to at least 5 

years to allow facilities adequate time to comply with standards and install necessary equipment; 

• Direct EPA, when developing the new rules, to adopt definitions that allow sources to continue to use alternative fuels 

for energy recovery; and 

• Direct EPA to ensure that new rules are achievable by 

real-world boilers, process heaters, and incinerators and impose the least burdensome regulatory alternatives consistent 


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with the purposes of the Clean Air Act and President Obama’s 

Executive Order 13563 regarding improving regulation and 

regulatory review. 

BACKGROUND AND NEED FOR LEGISLATION

Introduction 

The domestic manufacturing and industrial sectors in the United 

States currently face numerous new Environmental Protection 

Agency (EPA) rules under the Clean Air Act (CAA) and other statutes. Among the most significant and costly of the new rules are 

four interrelated, highly complex, and data-intensive rules setting 

new standards for over 200,000 boilers, process heaters, and incinerators. 

The rules were developed under Sections 112 and 129 of the CAA 

which target emissions of hazardous air pollutants. Under these 

sections, EPA is required to set technology-based standards for 

sources that emit such pollutants that are reflective of levels of 

emissions limits achieved by the best performing sources. EPA is 

directed to establish ‘‘maximum achievable control technology’’ 

(MACT) and other standards to reduce emissions of such pollutants. 

The EPA rules addressed in H.R. 2250 were all published on 

March 21, 2011, and include the following four rules: 

(1) National Emissions Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial and Institution 

and Process Heaters (‘‘Major Source Rule’’), 76 Fed. Reg. 15608 

(March 21, 2011), promulgated under Section 112 of the Clean 

Air Act; 

(2) National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial Commercial and Institutional 

Boilers (‘‘Area Source Rule’’), 76 Fed. Reg. 15554 (March 21, 

2011), promulgated under Section 112 of the Clean Air Act; 

(3) Standards of Performance and Emissions Guidelines for 

Existing Sources: Commercial and Industrial Solid Waste Incineration Units (‘‘CISWI Rule’’), 76 Fed. Reg. 15704 (March 

21, 2011), promulgated under Section 129 of the Clean Air Act; 

and, 

(4) Identification of Non-Hazardous Secondary Materials 

That Are Solid Waste (‘‘NHSM Rule’’), 76 Fed. Reg. 15456 

(March 21, 2011), promulgated under Sections 2002(a)(1) and 

1004(27) of the Resource Conservation and Recovery Act. 

Collectively, these four rules often are referred to as the ‘‘Boiler 

MACT Rules.’’ The Major Source Rule applies to an estimated 

13,800 boilers located at manufacturing and industrial facilities, as 

well as large commercial and institutional sites, including large 

universities and health care facilities. The Area Source Rule applies to an estimated 187,000 smaller boilers located at tens of 

thousands of industrial, institutional, and commercial sites, including, colleges and universities, hospitals, hotels, commercial buildings, and municipal and federal facilities. The CISWI Rule currently applies to an estimated 88 incinerators. The NHSM Rule defines non-hazardous secondary materials as fuel or waste, which 

determines whether an emissions source will be regulated under 

Section 112 or Section 129 of the Clean Air Act. 


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There has been widespread concern in the regulated community 

about the unprecedented costs and feasibility for many facilities of 

implementing these rules as currently written, and about potential 

job losses and harm to the economy. The EPA Regulatory Relief 

Act of 2011 is designed to give EPA the time and parameters it 

needs to develop revised standards for these sources that will protect public health and the environment without undue threat to 

jobs and our economy. 

Potential economic and job impacts 

EPA’s rules impose significant new compliance costs and put tens 

of thousands of jobs at risk. While EPA estimates the capital expenditures associated with these rules to be $5.8 billion, the regulated community has projected that the capital costs for the final 

Major Source Rule alone may exceed $14 billion, plus annual operating and maintenance costs, and put 224,000 jobs at risk. The forest products sector has estimated that the cost of the rules to their 

industry alone could range from $5 to $7 billion, and that 36 mills 

and more than 20,000 pulp and paper industry jobs, representing 

18% of the current workforce, may be put at risk. That estimate 

rises to more than 87,000 jobs when supplier and downstream industries are included. 

The rules have particularly severe potential impacts in the current economic climate. For example, at an April 15, 2011, hearing 

before the Subcommittee on Energy and Power, Dirk Krouskop, 

Vice President, Safety, Health and Environment of MeadWestvaco 

Corporation, testified: ‘‘Since many wood and paper mills are located in rural areas where these high-paying jobs cannot be replaced, the effect of these job losses on local rural communities can 

be especially devastating. The closure of a mill in a small town has 

an enormous ripple effect when the mill is the largest employer 

and a major contributor to local taxes and community civic programs.’’ 

The compliance burdens and substantial costs of the rules go 

well beyond major industrial facilities. For example, on April 15, 

2011, the Subcommittee on Energy and Power received testimony 

from Paul Kempf, Director of Utilities at the University of Notre 

Dame. Mr. Kempf stated that EPA’s original Major Source Rule for 

boilers issued in 2004 cost Notre Dame $20 million before the rule 

was vacated by the courts. He further stated ‘‘[n]ow, nearly four 

years later, we are faced with a revised rule that is patently different from the original rule and one that presents uncertain compliance capabilities for our investment.’’ He anticipates high compliance costs for these new rules and noted that ‘‘these added costs 

of compliance are borne by our students and their families.’’ Other 

non-industrial boiler owning entities will also face similar substantial compliance costs, and will likely have to pass at least some of 

those costs onto consumers in the form of higher tuition, hospital 

bills, or rent. 

The need for a legislative stay and more compliance time 

EPA received more than 4,800 comments on the Boiler MACT 

Rules. In December 2010, EPA requested 15 additional months 

from the court to re-propose three of the four rules. That request, 

however, was denied in January 2011, and EPA was given only 30 


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days to finalize the rules. On the same day EPA announced the 

final rules, it also took the unusual step of announcing plans to reconsider certain aspects of the rules, in part because the public had 

not had sufficient time to comment. Many parties have asked EPA 

to reconsider other aspects of the rules. 

All of the rules been challenged before the Agency and in the 

Federal courts. Although EPA has initiated reconsideration of three 

of the rules (the Major Source, Area Source, and CISWI rules), and 

issued a limited stay of the effective date for two of the rules (the 

Major Source and CISWI rules), there continues to be significant 

regulatory uncertainty. This is because the outcome of EPA’s reconsideration process is unknown, including whether EPA’s stays of 

the two rules will be upheld, as they themselves have been challenged in Federal court. 

Legislation staying the rules is needed to prevent thousands of 

businesses and institutions located across the United States from 

having to make major and potentially unnecessary capital expenditures to comply before they know what the rules ultimately will require. A legislative stay for a sufficient period of time, moreover, 

is essential to ensure EPA has adequate time to address all of the 

complex technical issues that have been raised, obtain and fully 

analyze relevant data, and develop workable rules. 

An extension of the current compliance periods is also needed for 

implementing the final rules. Given their technical complexity, the 

billions of dollars in compliance costs, and the current economic climate, extending the compliance periods will help to ensure that 

U.S. businesses and institutions can integrate the complex compliance requirements, consistent with capital planning cycles and the 

availability of qualified vendors and of high-quality control equipment. Extending the compliance periods is also needed given the 

many other major regulations taking effect over the next few years. 

Numerous witnesses before the Committee have addressed the 

need for a legislative stay of the rules and an extension of the compliance periods. On September 8, 2011, the Subcommittee on Energy and Power received testimony from James A. Rubright, Chief 

Executive Officer of Rock-Tenn Company. He testified that ‘‘Congress should stay the rules for 15 months so EPA can get them 

right, reset the date for defining new sources, allow facilities more 

time to comply, clarify that renewable and recyclable materials are 

traditional fuels, and ensure the rules are achievable and less burdensome.’’ 

With respect to the compliance periods, on April 15, 2011, Dirk 

Krouskop of MeadWestvaco testified to the Subcommittee on Energy and Power that ‘‘[t]he three years provided in the rule to comply is insufficient given the complexities of the rules’’ and that 

‘‘[f]acilities should be given several more years to comply to account 

for capital planning cycles and allow a smooth implementation of 

the new Boiler MACT requirements.’’ 

Similarly, Todd Elliott or the Celanese Corporation testified on 

September 8, 2011, that ‘‘[r]egardless of what option we choose, we 

cannot achieve compliance within three years. Extending the Boiler 

MACT compliance deadline to five years as proposed in H.R. 2250 

would help ensure that Celanese and the manufacturing sector has 

adequate time to meet the new air quality standards without forced 

facility shutdowns or inadequate resources to ensure compliance.’’ 


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The need for achievable regulations 

In addition to the need for adequate time for issuance and compliance with the Boiler MACT Rules, there is a pressing need for 

ensuring that these rules are achievable in practice. The regulated 

community has not opposed regulation, but rather advocated for 

achievable and affordable rules. Substantive concerns with the 

Boiler MACT rules have focused on the need for standards that are 

achievable by real-world boilers consistently for all regulated pollutants across the full range of operating conditions, as required by 

the Clean Air Act. 

Many stakeholders have specifically expressed concern about 

EPA’s practice of setting standards following a ‘‘pollutant-by-pollutant’’ approach. At the September 8, 2011, hearing, Dr. Paul Gilman, Chief Sustainability Officer for Covanta Energy, testified before the Subcommittee on Energy and Power that under EPA’s approach ‘‘[e]mission standards for each pollutant were set by finding 

the lowest emissions from all the different units in a category, not 

the best overall units. This ‘pollutant-by-pollutant’ approach rather 

than ‘plant-by-plant’ is analogous to asking the decathlon champion 

at the Olympics to be able to win not only the overall decathlon, 

but all of the 10 gold individual events as well. People don’t work 

that way and neither do machines.’’ 

EPA itself has indicated that the Clean Air Act can be interpreted to support a ‘‘plant-by-plant’’ or source-based approach. In 

the Major Source Boiler Rule, 76 Fed. Reg. 15621 (March 21, 2011), 

EPA expressly stated that Section 112(d)(3) of the Clean Air Act is 

‘‘ambiguous as to whether the MACT floor is to be based on the 

performance of an entire source or on the performance achieved in 

controlling particular [hazardous air pollutants].’’ Nevertheless, 

EPA followed a ‘‘pollutant-by-pollutant’’ approach in the Boiler 

MACT Rules which has led to unachievable standards. 

This approach has led to situations in which even best performing units do not meet the standards set by the Agency. At the 

September 8, 2011, hearing before the Subcommittee on Energy 

and Power, Todd Elliott of the Celanese Corporation noted that 

‘‘some of our boilers at the Narrows, Virginia facility were identified by the Environmental Protection Agency as top-performing 

units and were used to set the proposed regulatory standards for 

hydrochloric acid and mercury emissions. Not even these top-performing units, however, will meet the emissions standards for both 

mercury and hydrochloric acid simultaneously without installing 

costly emission controls.’’ Congress did not intend this arbitrary 

outcome. Congressional intent was that best performers must actually be controlling their emissions and that their techniques must 

be capable of being reproduced by others in the source category. 

There are also major concerns that the rules do not address operational realities faced by facilities. For example, Mr. Elliott also 

testified that ‘‘[o]ur industry is often required to meet production 

demands during periods of natural gas supply shortages that are 

primarily the result of limited regional pipeline capacity.’’ He stated that ‘‘[t]he current Boiler MACT and Area Source rules prevent 

industry from combusting alternate fuels during curtailment periods except on the rare occasions when the supply of natural gas is 

completely cut off for reasons beyond the control of the facility. By 

making it cost prohibitive to burn alternative fuels, the current 


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rule would force industry either to pay excessive prices for natural 

gas or curtail production.’’ He urged ‘‘the modification of curtailment provisions in the Boiler MACT and Area Source rules to define curtailment as a period during which the use of natural gas 

at an affected facility is halted, restricted, or penalized for reasons 

beyond the control of the facility.’’ 

There are also significant concerns associated with the NHSM 

Rule, which EPA has not stayed. In that rule, EPA has established 

an approach that will redefine many materials with energy value 

and now used as fuel to be ‘‘solid waste’’ under the Resource Conservation and Recovery Act. Accordingly, boilers that burn those 

materials will be redefined as incinerators and will be subject to 

the more rigid requirements under Section 129 rather than Section 

112 of the Clean Air Act. As a result of the changes in the definition of ‘‘solid waste,’’ many businesses will discontinue the good 

practice of recovering energy from these materials and the materials will be treated as waste and landfilled—a bad result for the 

environment. 

On September 8, 2011, Dr. Gilman of Covanta Energy specifically testified before the Subcommittee on Energy and Power about 

the potential for these rules to be environmentally counterproductive by discouraging the use of waste materials or biomass 

to fuel boilers. Currently, Covanta uses materials like construction 

and demolition (C&D) debris and tree stumps from old orchards, 

but the EPA’s definitional change would make this practice costprohibitive. The outcome, according to Dr. Gilman, is that instead 

of supplementing fossil fuels as an energy source for boilers, C&D 

will ‘‘go to landfills where it will generate methane gas,’’ and tree 

stumps ‘‘will be left for farmers to burn in their open fields.’’ 

Benefits 

While the regulated community as noted above does not oppose 

the issuance of achievable regulations, and H.R. 2250 requires EPA 

to promulgate new rules to regulate hazardous air pollutant emissions from industrial, commercial, and institutional boilers, process 

heaters, and incinerators, the Committee notes that questions have 

been raised concerning EPA’s projections of benefits under these 

rules. In particular, EPA does not calculate the benefits from reductions of mercury or other hazardous air pollutants. Rather, EPA 

calculates benefits based on the incidental reductions in outdoor 

particulate levels, called ‘‘PM,’’ a non-hazardous pollutant. 

Dr. Peter Valberg, a toxicologist and principal of Gradient, an environmental consulting firm, and former faculty member at the 

Harvard School of Public Health, testified to the Subcommittee on 

Energy and Power on September 8, 2011. He noted at the outset 

that, ‘‘by every public health measure, from infant mortality to life 

expectancy, we are healthier today, and exposed to fewer hazards, 

than ever before. Our present-day air is much cleaner now than 

years ago, thanks to EPA, and our air quality is among the best 

in the world.’’ 

He testified that with respect to EPA’s projections of benefits 

from reductions of particulate matter, ‘‘[i]ntricate statistical manipulations are required to demonstrate the PM-mortality correlations. 

The computer models require many assumptions and adjustments, 

and the results you get depend on the model you use, how you set 


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it up, and how many different tests you run. You need to correct 

for many non-PM pollutants as well as non-pollution factors that 

may confound the PM-mortality associations. It’s not clear that all 

confounders have been taken into account, and mere associations 

cannot establish causality.’’ 

He also testified that exposure to outdoor particulate matter is 

very small compared to exposure resulting from normal everyday 

activities, such as cleaning, cooking, baking, frying, barbecuing, 

mowing lawns, raking leaves, or enjoying a fireplace. He stated 

that there are major questions about ‘‘lives saved’’ by small PM reductions in the outdoor air. He further stated ‘‘[m]ost importantly, 

neither the animal toxicology nor the human clinical data validate 

the statistical associations from the observational epidemiology 

studies.’’ 

What the EPA Regulatory Relief Act of 2011 would do 

Under H.R. 2250, EPA would be required to promulgate new 

rules to replace the four recently published rules, and to extend the 

compliance deadlines for regulated entities from 3 years to at least 

5 years. The Committee urges EPA in promulgating the new rules 

to address all of the significant substantive technical issues that 

have been raised in the reconsideration proceedings, and to set reasonable compliance dates for businesses and institutions to install 

necessary controls and to come into compliance with the new rules. 

In promulgating the new rules, H.R. 2250 would require that 

EPA, in defining the terms ‘‘commercial and industrial solid waste 

incineration unit,’’ ‘‘commercial and industrial solid waste,’’ and 

‘‘contained gaseous material,’’ to adopt the meaning of those terms 

set forth in a 2000 EPA rule published at 65 Fed. Reg. 75338 (December 1, 2000). Under these definitions, units designed for energy 

recovery are regulated under Section 112 of the Clean Air Act, and 

are excluded from being regulated as incinerators under Section 

129. 

These definitions will ensure that the valuable energy content in 

a wide range of materials can continue to be recovered and will not 

be wasted. Congress has long supported innovation to safely extract the energy value from secondary materials, and if EPA promulgates rules that discourage the recapture of their energy value, 

as a nation we will be landfilling energy. This is not sound energy 

or environmental policy. 

Further, H.R. 2250 clarifies that the emissions standards set by 

the Administrator in the new rules must be achievable in practice. 

Section 5(a) specifically requires the Administrator to ensure that 

emission standards for existing and new sources established under 

Section 112 or 129 of the Clean Air Act can be met under actual 

operating conditions consistently and concurrently with emission 

standards for all other air pollutants regulated by the rule for the 

source category, taking into account variability in actual source 

performance, source design, fuels, inputs, controls, ability to measure the pollutant emissions, and operating conditions. This is intended to ensure that the standards set can be achieved in practice 

by facilities using available technology. 

The directive to establish standards achievable in practice in Section 5(a) only applies to industrial, commercial, and institutional 

boilers and process heaters, and commercial and industrial solid 


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waste incinerator units covered by the rulemakings addressed in 

the legislation. The Committee urges EPA to ensure that future 

rulemakings for other source categories set standards that are 

similarly achievable in practice under actual operating conditions 

consistently and concurrently with emission standards for all other 

air pollutants regulated by the rules. 

Section 5(a) clarifies Congress’ intent that the standards EPA 

sets be based on emissions limits that are currently achieved in 

practice. In setting standards, EPA must utilize facility data to establish standards based on the criteria and methodology in this 

section of the bill. EPA should review all available data and, to the 

maximum extent practicable, utilize it to develop the standards in 

the manner required by the legislation. In addition to stack test 

and fuel sampling data that EPA relied on to develop the boiler 

and incinerator rules, facilities that will be regulated by these rules 

routinely submit air emissions inventory and toxic release inventory data as required by EPA and the states. EPA has broad technical expertise and experience analyzing the full range of facility 

data. To the extent that EPA determines that the existing data 

should be supplemented in order to develop the standards as required by the bill, EPA may need to seek limited additional data 

from regulated sources, such as data to understand boiler variability. 

Finally, H.R. 2250 also reiterates that in promulgating the new 

rules, the Administrator should impose the least burdensome regulatory alternatives, consistent with the purposes of the Clean Air 

Act and President Obama’s Executive Order 13563 (published January 21, 2011). That order states that an agency should ‘‘tailor its 

regulations to impose the least burden on society, consistent with 

obtaining regulatory objectives, taking into account, among other 

things, and to the extent practicable, the costs of cumulative regulations.’’ 

Although the executive order recognized the need for regulations, 

it emphasized that regulatory agencies must do so ‘‘while promoting economic growth, innovation, competitiveness, and job creation.’’ This provision of H.R. 2250 is intended to ensure that 

where alternative measures authorized by the Clean Air Act will 

achieve the goals of the Act, that the Administrator chooses the 

least burdensome of those alternatives consistent with the objectives of the Act. 

Supporters of the legislation 

The following entities have expressed support for H.R. 2250: 

A/C Power Colver, AbitibiBowater, Alabama Forestry Association, 

Alabama Pulp & Paper Council, Allegheny Hardwood Utilization 

Group, Inc., American Architectural Manufacturers Association, 

American Chemistry Council, American Coatings Association, 

American Coke & Coal Chemicals Institute, American Composites 

Manufacturers Association, American Fiber Manufacturers Association, Americans For Prosperity, American Forest & Paper Association, American Foundry Society, American Frozen Food Institute, 

American Home Furnishings Alliance, American Loggers Council, 

American Municipal Power, American Petroleum Institute, American Sugar Cane League, American Wood Council, Amerities Holdings LLC, Anthony Liftgates, Inc., APA—The Engineered Wood AsVerDate Mar 15 2010 22:31 Sep 27, 2011 Jkt 099006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR225.XXX HR225

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sociation, Appleton Papers Inc., APUs by Rex, LLC, Archer Daniels 

Midland Company, ARIPPA, Arkansas Forestry Association, Arkansas State Chamber of Commerce, Associated Industries of Arkansas, Inc., Associated Industries of Vermont, Association of 

American Railroads, Association of Independent Corrugated Converters, Atlantic Wood Industries, Inc., Barge Forest Products Co., 

Beet Sugar Development Foundation, Belden Brick Company, 

Belimed, Inc., Bennett Lumber Company, Berco, Inc., Biomass One, 

LP, Biomass Power Association, Blue Bell Creameries, Blue Ridge 

Paper Products, Boise Cascade, LLC, Boise Inc., Brick Industry Association, Business Council of Alabama, Business Roundtable, 

Cahaba Timber Co., California Forestry Association, California 

League of Food Processors, California Metals Coalition, Canyon 

Creek Logging, Carolina Cotton Works, Inc., Cement Kiln Recycling Coalition, Chaney Lumber Co., Inc., Charles Ingram Lumber 

Co., Coast Wood Preserving, Inc., Coastal Plywood Company, Collins Pine Company, Colorado Association of Commerce & Industry, 

Composite Panel Association, Construction Materials Recycling Association, Corn Refiners Association, Council of Industrial Boiler 

Owners, Cresote Council, Decker Energy International, Inc., Dietz 

& Watson, Inc., Domtar Corporation, Douglas County Forest Products, Eastman Chemical Company, Eaton Corporation, Electric 

Mills Wood Preserving, Empire State Forest Products Association, 

Evergreen Packaging, Fibrek, Finch Paper LLC, Flakeboard America, Flambeau River Papers, Florida Forestry Association, Florida 

Pulp and Paper Association, Florida State Council, Florida Sugar 

Industry, Flower City Tissue Mills Co., Inc., FMC Corporation, Forest Landowners Association, Forest Products Industry National 

Labor Management Committee, Forest Resources Association Inc., 

Forging Industry Association, Fowler Post Co, Inc., Fox River Fiber 

Company, Genesee Power Station LP, George A. Whiting Paper 

Company, Georgia Association of Manufacturers, Georgia Paper & 

Forest Products Association, Inc., Georgia-Pacific LLC, Glatfelter, 

Glier’s Meats, Inc., Green Diamond Resources Company, H. W. 

Culp Lumber Co., Hardwood Federation, Hardwood Manufacturers 

Association, Hardwood Plywood and Veneer Association, Harrigan 

Lumber Co., Inc., Hawaii Forest Industry Association, Hesse and 

Sons Dairy LLC, Hood Industries, Inc., Idaho Forest Group, INDA, 

Association of the Nonwoven Fabrics Industry, Indiana Hardwood 

Lumbermen’s Association, Industrial Energy Consumers of America, Industrial Fastener Institute, Industrial Minerals Association—North America, Innovative Pine Technology Inc., Interfor, 

International Brotherhood of Electrical Workers, International 

Falls Chamber of Commerce (MN), International Paper, J.T. 

Fennell Company, Inc., JELD-WEN, Inc., Jordan Lumber & Supply, Inc., Kansas City Power & Light, Kapstone Paper and Packaging Corporation, Kentucky Forest Industries Association, 

Kercher Industries, Inc., Kitchen Cabinet Manufacturers Association, Koppers Inc., Lake States Lumber Association, Land O Lakes 

Wood Preserving Co., Langdale Forest Products Co., L’anse Warden Electric Company, LLC, Leggett & Platt, Incorporated, Longview Fibre Paper and Packaging, Inc., Louis Dreyfus Agricultural 

Industries, Louisiana Farm Bureau Federation, Louisiana Pacific 

Corporation, Louisiana Pulp and Paper Association, LyondellBasell 

Industries, Maine Pulp & Paper Association, Manufacture AlaVerDate Mar 15 2010 22:31 Sep 27, 2011 Jkt 099006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR225.XXX HR225

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bama, Manufacturers and Chemical Industry Council of North 

Carolina, Maple Flooring Manufacturers Association, Masco Corporation, Maxi-Seal Harness Systems, Inc., McShan Lumber Company, Inc., MeadWestvaco Corporation, Melrose Timber Company, 

Inc., Metal Treating Institute, Metals Service Center Institute, 

Michigan Biomass, Michigan Forest Products Council, Minnesota 

Chamber of Commerce, Minnesota Forest Industries, Mission Plastics North, Mission Plastics of Arkansas, Mississippi Manufacturers Association, Missouri Forest Products Association, Motor & 

Equipment Manufacturers Association, Mount Vernon Mills, Inc., 

Muscatine Foods Corporation, National Association for Surface Finishing, National Association of Manufacturers, National Association 

of Trailer Manufacturers, National Concrete Masonry Association, 

National Construction Alliance II, National Council of Farmer Cooperatives, National Council of Textile Organizations, National 

Federation of Independent Business, National Lumber and Building Material Dealers Association, National Oilseed Processors Association, National Solid Wastes Management Association, National 

Spinning Company, NC Association of Professional Loggers, Inc., 

Neenah Paper Inc., Nevada Manufacturers Association, New 

Hampshire Timberland Owners Association, Nippon Paper Industries USA Co., Nisus Corporation, NORA, An Association of Responsible Recyclers (formerly the National Oil Recyclers Association), North American Die Casting Association, North American 

Wholesale Lumber Association, North Carolina Chamber of Commerce, North Carolina Forestry Association, Northeast Regional 

Council of Millwrights, Northwest Pulp and Paper Association, 

Ohio Chamber of Commerce, Ohio Forestry Association, Ohio Manufacturers’ Association, Ohio Municipal Electric Association, Ohio 

Willow Wood Company, OMNOVA Solutions, Inc., Oregon Forest 

Industries Council, Owens-Illinois, Inc., Pacific Wood Laminates, 

Packaging Corporation of America, Page & Hill Forest Products 

Inc., Partnership for Affordable Clean Energy, Pellet Fuels Institute, Pennsylvania Business Council, Pennsylvania Chamber of 

Business and Industry, Pennsylvania Forest Products Association, 

Pennsylvania Manufacturers’ Association, Peterson Mfg. Co., Pile 

Driving Contractors Association, Piney Creek LP, Plum Creek, Port 

Townsend Paper Corporation, Portland Cement Association, Possum Tree Farm, Potomac Supply Corporation, PPG Industries, Precision Machined Products Association, Precision Pulley & Idler, 

Prince Manufacturing Corporation, Railway Tie Association, Rex 

Lumber, LLC, Rhodia, Inc., River Trading Company, Rock-Tenn 

Company, Rosboro LLC, Roseburg Forest Products Company, 

ROW, INC., Roy ‘‘O’’ Martin Lumber Company, LLC, Rubber Manufacturers Association, Rudd Company, Inc., S.I. Storey Lumber 

Co., Inc., Sage Automotive Interiors, Sappi Fine Paper North 

America, Sauder Woodworking Co., Scotch Plywood Company, Inc., 

Seymour Manufacturing Co., Inc., SierraPine Limited, Smith Street 

Mill, Society of Chemical Manufacturers and Affiliates, South Carolina Forestry Association, South Carolina Manufacturers Alliance, 

South Carolina Pulp and Paper Association (SCPPA), South Carolina Timber Producers Association, Southeast Wood, Southeastern 

Lumber Manufacturers Association, Southern Appalachian Multiple-Use Council, Southern Forest Products Association, Southern 

Pressure Treaters’ Association, SP Newsprint Co., States IndusVerDate Mar 15 2010 22:31 Sep 27, 2011 Jkt 099006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR225.XXX HR225

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tries, LLC, Steel Manufacturers Association, Stella-Jones Corporation, Streator Dependable Mfg. Co., Sunbury Textile Mills, Inc., 

Tegrant Corporation, Ten-Tec, Inc., Tennessee Chamber of Commerce & Industry, Tennessee Forestry Association, Tennessee 

Paper Council, Texas Association of Manufacturers, Texas Forest 

Industries Council, Texas Forestry Association, Textile Rental 

Services Association, The Association for Hose & Accessories Distribution (NAHAD), The Business Council of New York State, Inc., 

The Carpet and Rug Institute, The Dow Chemical Company, The 

International Association of Machinists and Aerospace Workers, 

The Oeser Company, The United Brotherhood of Carpenters and 

Joiners of America, Thilmany Papers, Thomasson Company, 

Thompson Industries, Inc., Timber Products Company, TMA, 

Tolleson Lumber Company, Tradewinds International Inc., Treated 

Wood Council, Tri-State Generation and Transmission Association, 

TrueGuard—wood preservation, U.S. Beet Sugar Association, U.S. 

Chamber of Commerce, Uniboard USA LLC, Unifi Manufacturing 

Inc., USA Rice Federation, Vector Tool and Engineering, Verso 

Paper Corp., Virginia Chamber of Commerce, Virginia Forest Products Association, Virginia Forestry Association, Virginia Manufacturers Association, Washington Contract Loggers Association, Inc., 

Water Treatment Services Inc., Wausau Paper, Webb Consultants, 

Inc., WEBB Furniture Enterprises Corp, The Westervelt Company, 

Weyerhaeuser Company, Window and Door Manufacturers Association, Wisconsin Manufacturers & Commerce, Wisconsin Paper 

Council, and Wood Machinery Manufacturers of America. 

HEARINGS

The Subcommittee on Energy and Power on April 15, 2011, held 

a hearing on ‘‘The American Energy Initiative: Recent EPA 

Rulemakings Relating to Boilers, Cement Manufacturing Plants 

and Utilities,’’ and received testimony from: 

• Tom Fanning, Chairman, President and Chief Executive 

Officer, Southern Company; 

• Anthony F. Earley, Jr., Executive Chairman, DTE Energy; 

• Aris Papadopolous, President and Chief Executive Officer, 

Titan America LLC; 

• Dirk Krouskop, Vice President, Safety, Health and Environment, MeadWestvaco Corporation; 

• Paul Kempf, Director of Utilities, University of Notre 

Dame; 

• Michael J. Bradley, Executive Director, The Clean Energy 

Group; and 

• John Walke, Clean Air Director and Senior Attorney, Natural Resources Defense Council. 

The Subcommittee on Energy and Power on September 8, 2011, 

held a legislative hearing on H.R. 2250, the ‘‘EPA Regulatory Relief 

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

Act of 2011,’’ and received testimony from: 

• The Honorable Gina McCarthy, Assistant Administrator, 

Office of Air and Radiation, U.S. Environmental Protection 

Agency; 

• James A. Rubright, Chairman and Chief Executive Officer, 

Rock-Tenn Company; 


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• Paul Gilman, Ph.D., Chief Sustainability Officer and Senior Vice President, Covanta Energy Corporation; • Todd Elliott, General Manager, Acetate, Celanese Corporation; • Daniel M. Harrington, President and CEO, Lehigh Hanson, Inc.; • Peter A. Valberg, Ph.D., Principal, Environmental Health, 

Gradient Corporation; • John Walke, Clean Air Director and Senior Attorney, Natural Resources Defense Council; and • Eric Schaeffer, Executive Director, Environmental Integrity Project. 

COMMITTEE CONSIDERATION

H.R. 2250 was introduced on June 21, 2011, by Representatives 

Morgan Griffith (together with Reps. Butterfield, Olson, Barrow, 

McMorris Rodgers, Ross, Scalise and Matheson). 

On September 8, 2011, the Subcommittee on Energy and Power 

held a legislative hearing on H.R. 2250. 

On September 13, 2011, the Subcommittee on Energy and Power 

reported the bill favorably to the full committee by voice vote. During the markup, two amendments were offered and defeated, by 

voice vote. 

On September 20 and 21, 2011, the Committee on Energy and 

Commerce met in open markup session. During the markup, three 

amendments were offered and one amendment was adopted by 

voice vote. 

On September 21, 2011, the Committee on Energy and Commerce met in open markup session and ordered H.R. 2250 reported 

to the House, as amended, by a roll call vote of 36 ayes and 14 

nays. 

COMMITTEE VOTES

Clause 3(b) of rule XII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. A motion by Mr. 

Upton to order H.R. 2250, reported to the House, as amended, was 

agreed to by a record vote of 36 yeas and 14 nays. The following 

reflects the recorded votes taken during the Committee consideration, including the names of those Members voting for and 

against. 


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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee made findings that are reflected 

in this report. 

STATEMENT OF GENERAL PERFORMANCE, GOALS AND OBJECTIVES

H.R. 2250 provides additional time and guidelines for the Administrator of the Environmental Protection Agency to issue achievable 

standards for industrial, commercial and institutional boilers, process heaters, and incinerators. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 2250, the 

EPA Regulatory Relief Act of 2011, would result in no new or increased budget authority, entitlement authority, or tax expenditures or revenues. 

EARMARK

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, the 

committee finds that H.R. 2250, the EPA Regulatory Relief Act of 

2011, contains no earmarks, limited tax benefits, or limited tariff 

benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate provided by 

the Congressional Budget Office. Pursuant to clause 3(c)(3) of rule 

XIII of the Rules of the House of Representatives, the following is 

the cost estimate provided by the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

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

Summary: In March 2011, the Environmental Protection Agency 

(EPA) completed four final rules related to emissions standards for 

industrial boilers, process heaters, and incinerators. H.R. 2250 

would prevent those rules from being implemented and require 

EPA to propose new regulations. EPA would have 15 months from 

the bill’s enactment to finalize the new regulations; entities affected by those regulations would have at least five years to comply 

with the new rules. CBO estimates that enacting this legislation 

would have a net cost of $1 million over the 2012–2016 period, subject to the availability of appropriated funds. Enacting H.R. 2250 

would not affect direct spending or revenues; therefore, pay-as-yougo procedures do not apply. 

H.R. 2250 contains no new intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act 

(UMRA). 

Estimated cost to the Federal Government: CBO estimates that 

implementing H.R. 2250 would have a net cost of $1 million over 

the next five years. The costs of this legislation fall within budget 

function 300 (natural resources and environment). 


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Basis of estimate: For this estimate, CBO assumes that H.R. 

2250 will be enacted by the end of 2011 and that the necessary 

amounts will be appropriated. 

According to EPA, the agency spent about $2 million over the 

2007–2010 period to develop and finalize the emissions standards 

addressed by H.R. 2250. Furthermore, CBO estimates that it would 

cost EPA about $2 million over the 2011–2016 period to implement 

and enforce those rules under current law. While enacting this bill 

would preclude EPA from spending resources on those activities, 

this legislation would require the agency to spend resources on proposing and finalizing new regulations. 

The new regulations would be based on emissions limits that can 

be achieved in practice by facilities using available technology. At 

this time, EPA is uncertain how it would interpret this requirement for the new regulations and cannot say what the cost to develop the new rules would be. For this estimate, CBO assumes that 

rulemaking costs for the new rules would be similar to those for 

the prior effort ($2 million) to issue regulations. CBO estimates 

that implementing and enforcing the new regulations required 

under H.R. 2250 would have an additional cost of about $1 million 

over the 2012–2016 period. 

On balance, CBO estimates that implementing this legislation 

would have a net cost $1 million over the next five years. 

Pay-As-You-Go considerations: None. 

Intergovernmental and private-sector impact: H.R. 2250 contains 

no new intergovernmental or private-sector mandates as defined in 

UMRA. 

Estimate prepared by: Federal costs: Susanne S. Mehlman; Impact on state, local, and tribal governments: Ryan Miller; Impact 

on the private sector: Amy Petz. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

SECTION-BY-SECTION ANALYSIS OF LEGISLATION

Section 1—Short title 

Section 1 provides the short title of ‘‘EPA Regulatory Relief Act 

of 2011.’’ 


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Section 2—Legislative stay 

Sections 2(a) and 2(b) direct the Administrator of the EPA to promulgate new rules to replace four recently published, interrelated 

EPA rules setting MACT and other performance standards for industrial, commercial and institutional boilers and process heaters, 

and commercial and industrial solid waste incineration units. 

These rules were issued under Sections 112 and 129 of the Clean 

Air Act, and Sections 2002(a)(1) and 1004(27) of RCRA. 

Section 2(a) directs the Administrator to finalize the new rules 

15 months from the date of enactment of the Act. 

Section 2(c) clarifies that the provisions of Section 112(j) and 

112(g)(2), which direct the Administrator or State permitting authorities to establish on a case-by-case basis emission limits in certain circumstances where the Administrator has failed to promulgate a MACT standard, shall not apply prior to the effective date 

of the new standards. 

Section 3—Compliance dates 

Section 3(a) extends the deadline for compliance with the new 

rules from 3 years to at least 5 years from the date of enactment 

of the Act to allow sufficient time for facilities to install equipment 

and comply with the new standards. 

Section 3(b) clarifies that for each of the new rules promulgated 

pursuant to the Act, the date on which the Administrator proposes 

the rule shall be treated as the proposal date for purposes of the 

definition of a ‘‘new source’’ under Section 112(a)(4), and of a ‘‘new 

solid waste incineration unit’’ under Section 129(g)(2) of the CAA. 

Section 3(c) clarifies that nothing in the legislation should be 

construed to restrict the Administrator or a State permitting authority from granting an extension under CAA Section 112(i)(3)(B) 

allowing an existing source up to 1 additional year to comply if necessary for the installation of controls, or to restrict the President 

from granting limited national security-related exemptions under 

CAA Section 112(i)(4). 

Section 4—Energy recovery and conservation 

Section 4 provides that in defining the terms ‘‘commercial and industrial solid waste incineration unit,’’ ‘‘commercial and industrial 

waste,’’ and ‘‘contained gaseous material,’’ the Administrator should 

adopt the meaning of those terms set forth in an EPA 2000 rule. 

These definitions provide that units designed for energy recovery 

should be regulated under Section 112 of the CAA, and should not 

be classified as incinerators and regulated under CAA Section 129. 

This section is intended to ensure the continued use of a wide 

range of alternative fuels and encourage energy recovery. 

Section 5—Other provisions 

Section 5(a) clarifies that the emissions standards set by the Administrator in the new rules must be achievable in practice. The 

section directs the Administrator to ensure that the emissions 

standards can be met under actual operating conditions consistently and concurrently for all pollutants regulated by the new 

rules. This section is intended to ensure that the standards are 

based on emission limits achieved in practice by real-world boilers, 

process heaters and incinerators. 


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Section 5(b) clarifies that in promulgating the new rules, the Administrator should impose the least burdensome regulatory alternatives, consistent with the purposes of the CAA and Executive 

Order 13563 (published January 21, 2011). 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

The bill does not change existing law. 


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1Statement of Congressman Pete Olson, Subcommittee on Energy and Power, Legislative 

Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector 

Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011). 2Testimony of Gina McCarthy, Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency, before the Subcommittee on Energy and Power, Legislative Hearing 

on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011). 3 Id. 

4Statement of Chairman Ed Whitfield, Subcommittee on Energy and Power, Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector 

Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011). 5Statement of Chairman Fred Upton, Subcommittee on Energy and Power, Markup of H.R. 

2681, the Cement Sector Regulatory Relief Act of 2011 and H.R. 2250, the EPA Regulatory Relief Act of 2011, 112th Cong. (Sept. 13, 2011). 

DISSENTING VIEWS 

I. PURPOSE OF LEGISLATION

This bill’s supporters have claimed that this bill simply gives 

EPA more time to modify and finalize rules for industrial, commercial, and institutional boilers and process heaters and commercial 

and industrial solid waste incinerators. The Committee report 

states that the purpose of the bill is ‘‘to provide additional time for 

the Administrator of the Environmental Protection Agency to issue 

achievable standards’’ for boilers and incinerators. Similarly, Congressman Pete Olson claimed that this bill ‘‘would give EPA the 

time that they requested to correct the seriously flawed boiler 

MACT rules.’’ 1

This is misleading. First, these standards are long overdue. The 

Clean Air Act amendments of 1990 identified toxic air pollution as 

a problem and set a statutory deadline of 2000 for setting emissions limits for polluting facilities. 

Second, as explained in more detail below, section 2 of bill effectively nullifies EPA’s boiler rules and prohibits EPA from finalizing 

new regulations for 15 months. In addition to this up-front delay, 

section 3 of the bill bars EPA from requiring facilities to reduce 

pollution to comply with any revised standards for at least five 

years once they go into effect. EPA does not want this delay. Gina 

McCarthy, Assistant Administrator for Air and Radiation at the 

U.S. Environmental Protection Agency, testified that this bill is not 

consistent with the extra time EPA had requested from the courts 

in 2010 to finish the boiler rules. She stated, ‘‘We did not ask for 

this. We do not need this.’’ 2 In fact, Ms. McCarthy concluded that 

the bill’s authors ‘‘have no mandatory timeline in mind for when 

these public health protections should be achieved.’’ 

Chairman Whitfield also claimed that this bill requires EPA to 

implement new emissions controls but replaces ‘‘unrealistic targets 

and timetables with achievable ones.’’ 3 Full Committee Chairman 

Fred Upton reiterated this argument, stating that the bill simply 

requires EPA to promulgate regulations that ‘‘reduce emissions 

using reasonable and achievable targets and 4 timetables.’’ 5 These 


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6 CAA § 112(d). 

7 CAA § 112(d)(3). 

8 CAA § 112(d)(3). 

9Statement of Congressman Pete Olson, Subcommittee on Energy and Power, Markup of H.R. 

2681, the Cement Sector Regulatory Relief Act of 2011 and H.R. 2250, the EPA Regulatory Relief Act of 2011, 112th Cong. (Sept. 13, 2011). 10Testimony of James A. Rubright before the Subcommittee on Energy and Power, Legislative 

Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector 

Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011). 11Testimony of Gina McCarthy, Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency, before the Subcommittee on Energy and Power, Legislative Hearing 

on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011). 12 Id. 13Testimony of John Walke, Senior Attorney, Natural Resources Defense Council, before the 

Subcommittee on Energy and Power, Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th Cong. 

(Sept. 8, 2011). 

statements suggest that EPA’s boiler rules set standards that are 

not achievable. But the Clean Air Act requires EPA to set specific 

emission limits for hazardous air pollutants based on pollution reductions that similar facilities already are achieving in the real 

world, not reductions achievable only in a laboratory or in computer models.6 For existing sources, the emission standard must be 

at least as stringent as the average emissions achieved by the bestperforming 12% of sources in that source category—not the top 1% 

or 2%, but the top 12%.7 For new sources, the emission standard 

must be at least as stringent as the emissions levels achieved by 

the best-controlled similar source.8 These minimum emissions levels are known as the Maximum Achievable Control Technology 

(MACT) floor. 

The bill’s supporters also claim that this bill will help create regulatory certainty. Congressman Pete Olson, for example, stated 

that the legislation ‘‘would provide regulatory certainty to businesses that are trying to create American jobs.’’ 9 James A. 

Rubright, testifying on behalf of the American Forest and Paper 

Association, stated that he supports the bill because it offers ‘‘additional time and certainty.’’ 10

In fact, the bill creates substantial new uncertainty, both on the 

timing for compliance and the degree of emission control required. 

In response to questioning from Ranking Member Rush, Ms. 

McCarthy from EPA stated that the bill ‘‘raises significant uncertainty about whether or not we can move this forward and what 

standards would need to be applied.’’ 11

In particular, section 5 of the bill is ambiguous. It places new 

constraints and conditions on how EPA must set specific emission 

standards for toxic air pollution. It also requires EPA to select the 

‘‘least burdensome’’ option when looking at how to cut pollution. 

But the bill does not explain what this means. Ms. McCarthy from 

EPA testified that this section could ‘‘raise legal uncertainty’’ because it is not clear whether or not it trumps current law.12 Environmental lawyers who have been litigating these provisions for 

decades told the Subcommittee that this section would override 

current law and exempt industrial boilers and incinerators from requirements to achieve maximum reductions in toxic air pollution.13

These are two distinct legal interpretations of the language. All 

that is certain is that this language will create new litigation to determine which interpretation prevails. 


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14 U.S. Environmental Protection Agency, Fact Sheet: EPA’s Final Air Toxics Standard, Major 

and Area Source Boilers and Certain Incinerators, Overview of Rules and Impacts (Feb. 21, 

2011). 15 U.S. Environmental Protection Agency, Fact Sheet: Final Air Toxics Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters at Major Source Facilities (Feb. 

21, 2011); U.S. Environmental Protection Agency, Fact Sheet: Final Air Toxics Standards for 

Industrial, Commercial, and Institutional Boilers at Area Source Facilities (Feb. 21, 2011); U.S. 

Environmental Protection Agency, Fact Sheet: Final Amendments to New Source Performance 

Standards and Emission Guidelines for Commercial and Industrial Solid Waste Incineration 

Units (Feb. 21, 2011). 16 Id. 17 U.S. Environmental Protection Agency, Final Rules to Reduce Air Toxics from Boilers and 

Incinerators, Briefing for Congressional Staff (Feb. 2011). 

In the end, this bill creates substantial uncertainty, ensures litigation, and goes far beyond providing EPA with extra time to finalize the rulemaking. This bill delays and may substantially weaken 

long overdue public health protections, allowing continued uncontrolled emissions of toxic air pollutants that cause cancer, developmental harm, and other serious health effects. 

II. RULES BLOCKED BY THE LEGISLATION

Section 112 of the Clean Air Act requires EPA to set technologybased standards to reduce toxic air pollutants from distinct source 

categories (e.g., power plants, boilers, and cement kilns). Toxic air 

pollutants are pollutants that are known or suspected to cause cancer or other serious health effects, such as reproductive or birth defects or neurological effects, or adverse environmental effects. EPA 

rulemakings aim to reduce the release of 187 hazardous air pollutants including mercury, cadmium, lead, benzene and dioxin. 

Mercury is a hazardous air pollutant of particular concern. Mercury is emitted into the air and is then deposited into water bodies, 

where it contaminates fish and other aquatic life. High levels of 

mercury in fish have triggered mercury advisories in water bodies 

around the country. Pregnant and nursing women, women who 

may become pregnant and young children who eat large amounts 

of mercury-contaminated fish are especially at risk because mercury damages babies’ developing brains, harming children’s ability 

to think and learn. 

In April 2010, EPA proposed standards to reduce toxic air pollutants from industrial, commercial, and institutional boilers and 

process heaters and commercial and industrial solid waste incinerators. EPA held three public hearings and received more than 

4,800 comments during an extended public comment period. Pursuant to a court order, EPA finalized these rules on February 21, 

2011, eleven years after the statutory deadline. 

EPA significantly modified the final rules from the proposals in 

response to the public comments. As a result, the final rules cut 

costs approximately in half.14 The rules maintain significant public health benefits, which are estimated at between $22 billion to $56 

billion each year, as well as the non-monetized benefits of reductions in mercury, dioxins, and other toxic air pollutants.15 Annually, the final rules are estimated to avoid up to 6,600 premature 

deaths, 42,000 aggravated asthma cases and 320,000 days when 

people miss school or work.16 EPA also estimates that the rules 

will create a net gain of 2,200 jobs, which does not include the jobs 

created to manufacture and install equipment to reduce air pollution.17


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18 CAA § 112(i)(3). 19Testimony of Gina McCarthy, Assistant Administrator for Air and Radiation, U.S. Environmental Protection Agency, before the Subcommittee on Energy and Power, Legislative Hearing 

on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th Cong. (Sept. 8, 2011). 

On May 16, 2011, EPA announced that it would reconsider the 

final standards for boilers and certain solid waste incinerators to 

seek additional public comment and stakeholder input. EPA also 

issued a stay to delay the effective date of the standards for major 

source boilers and commercial and industrial solid waste incinerators. 

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

This bill delays issuance and implementation of the rules to reduce hazardous air pollution from boilers and incinerators, undermines EPA’s authority to require application of the best performing 

emissions control technologies, and could allow more facilities to incinerate waste without being subject to the more stringent pollution control requirements that apply to waste incinerators. 

Section 2 of bill effectively nullifies EPA’s boiler rules, including 

the rule for area sources, which is not subject to EPA’s regulatory 

stay, and directs EPA to promulgate new MACT standards for boilers and incinerators. As reported out of the Subcommittee on Energy and Power, the bill prohibited EPA from finalizing these regulations for at least 15 months and allowed for an indefinite further 

delay. During the Full Committee markup, Congressman Morgan 

Griffith offered an amendment to clarify that EPA must finalize 

the regulations on the date that is 15 months after the date of enactment. This language appears to preclude EPA from acting earlier or later than the date that is 15 months after the date of enactment. This amendment passed on voice vote. 

In addition to this up-front delay of 15 months, section 3 of the 

bill bars EPA from requiring facilities to reduce pollution to comply 

with any revised standards for at least five years, and potentially 

longer. The Clean Air Act currently requires facilities to comply 

with emissions limits ‘‘as expeditiously as practicable’’ and within 

three years at most.18 The bill requires EPA to consider numerous 

factors when establishing a compliance date, including the costs of 

achieving emissions reductions, feasibility, availability of equipment and labor, and potential net employment impacts. This provides a new basis for industry litigation on any final rules. 

Gina McCarthy, Assistant Administrator for Air and Radiation at 

the U.S. Environmental Protection Agency, testified that delaying 

implementation of the major source boiler rule for three years 

would allow up to 20,000 additional premature deaths; 12,000 additional heart attacks; and 123,000 additional asthma attacks that 

could have been avoided.19 Three years is likely on the short end 

of the possible delay, given the delays embedded in the bill and 

new litigation that would flow from several of the provisions. 

Section 5 of the bill arguably undermines the fundamental 

premise of sections 112 and 129 of the Clean Air Act. Section 5 establishes two new criteria for EPA to consider when setting emissions standards for toxic air pollution. One could interpret these 

criteria as supplanting the existing criteria for determining MACT, 


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20 Id. 21 CAA § 112(h). 

substantially weakening the existing standards for controlling toxic 

air pollution. Alternatively, one could interpret this section as complementing but not replacing current law. In that case, these criteria would merely inform decisions where EPA currently has discretion, such as in setting MACT standards more stringent than 

what is required by law. Both the intent of the provisions and the 

legal effect of the language are ambiguous, providing at minimum 

new legal risks and opportunities for litigation. During questioning 

by Ranking Member Waxman at the September 8 legislative hearing, Ms. McCarthy from EPA stated that section 5 of both bills 

could ‘‘raise legal uncertainty.’’ 20

If section 5 of the bill overrides current Clean Air Act standards, 

the result would be less stringent emissions reduction requirements and weaker protections for public health. 

Section 5(a) of the bill requires EPA to set emissions standards 

that can be met under actual operating conditions ‘‘consistently and 

concurrently with emission standards for all other air pollutants’’ 

taking into account several mitigating factors. Committee Members 

supporting this provision and witnesses at the hearings suggested 

that this is intended to change how EPA sets air toxics standards. 

EPA has set MACT standards for numerous sources since 1990. 

Sections 112 and 129 of the Clean Air Act require EPA to set toxic 

air pollution standards for a source category based on the average 

emissions levels achieved by the best performing 12% of facilities 

in that industry. EPA does this on a pollutant-by-pollutant basis. 

EPA reviews the emissions levels being achieved in practice and 

calculates the average of the cleanest 12% of sources for each pollutant. 

The language in the bill suggests that EPA may have to set 

MACT limits based on the ‘‘best performing sources’’ for all pollutants in the aggregate. If this is what the language requires, it 

would be an impossible task for EPA. The agency would have to 

determine, for example, whether a plant that emits 150 pounds of 

mercury and 100 tons of lead each year is better or worse performing than a plant that emits 200 pounds of mercury and 50 tons 

of lead. Giving EPA open-ended and unworkable directions is a recipe for delay, litigation, and weak, if any, standards. 

Similarly, section 5(b) could be interpreted to require EPA to 

forego numeric emissions limits in favor of less stringent work 

practice standards. Sections 112 and 129 of the Clean Air Act require EPA to set MACT standards for new and existing sources of 

pollution based on the emission levels achieved by relatively clean 

similar facilities. When the Administrator determines that it is not 

feasible to reduce pollution by prescribing or enforcing emissions 

standards for a source, she may promulgate less protective work 

practice standards instead.21 In fact, that is what EPA chose to do 

for smaller, less polluting boilers as part of its MACT rulemaking 

for these sources. Section 5(b), however, may compel the Administrator to choose the least burdensome regulatory option, including 

work practice standards, without requiring a finding of infeasibility. As a result, EPA could be required to set work practice 


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22Testimony of John Walke, Senior Attorney, Natural Resources Defense Council, before the 

Subcommittee on Energy and Power, Legislative Hearing on H.R. 2250, the EPA Regulatory Relief Act of 2011 and H.R. 2681, the Cement Sector Regulatory Relief Act of 2011, 112th Cong. 

(Sept. 8, 2011). 23 U.S. Environmental Protection Agency, Standards for Performance of New Stationary 

Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste 

Incineration Units, 65 Fed. Reg. 75338 (Dec. 1, 2000). 24Due to procedural errors in the rulemaking, EPA reconsidered and re-promulgated the 2000 

definition in 2005 in substantially similar form. The court vacated the 2005 rule. See Natural 

Resources Defense Council, v. U.S. Environmental Protection Agency, 489 F.3d 1250 (D.C. Cir. 

2007). 25 Id. 

standards across the board, even if a more stringent standard is 

feasible and more protective of public health. John Walke, a senior 

attorney at the Natural Resources Defense Council, testified that 

this section ‘‘would have the effect of exempting industrial boilers 

and incinerators from maximum reductions in toxic air pollution 

emissions, in contrast to almost any other major industrial source 

of toxic air pollution in the nation.’’ 22

Ranking Member Bobby Rush introduced an amendment in the 

subcommittee and full committee markups to clarify that section 5 

is intended to supplement but not supplant EPA’s existing authority under sections 112 and 129 of the Clean Air Act. This amendment was defeated in full committee by a vote of 16 to 34. Congresswoman Tammy Baldwin introduced an amendment during the 

full committee markup to strike this ambiguous language and replace it with a simple provision directing EPA to use its existing 

authority to address industry concerns about meeting the emissions 

limits for each pollutant at the same time. This amendment was 

defeated in full committee by a vote of 17 to 34. 

Section 4 of the bill could exempt facilities that burn waste from 

the standards that apply to incinerators, which are subject to more 

stringent monitoring, reporting and pollution control requirements 

under section 129 of the Clean Air Act. The bill directs EPA to 

adopt the definitions of ‘‘commercial and industrial solid waste incineration unit,’’ ‘‘commercial and industrial waste,’’ and ‘‘contained 

gaseous material’’ as prescribed in the 2000 EPA rule on solid 

waste incineration.23 In 2007, the U.S. Court of Appeals for the 

District of Columbia vacated these definitions as inconsistent with 

the plain language and intent of the Clean Air Act.24 The court 

also determined that the narrow definition of commercial and industrial waste ‘‘substantially reduces’’ the number of facilities subject to the more stringent section 129 requirements by exempting 

any incinerator that recovers or has the potential to recover energy.25


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For the reasons stated above, we dissent from the views contained in the Committee’s report. 

HENRY A. WAXMAN. BOBBY L. RUSH. DIANA DEGETTE. JAN SCHAKOWSKY. ED TOWNS. LOIS CAPPS. ELIOT ENGEL. EDWARD J. MARKEY. ANNA G. ESHOO. MIKE DOYLE. DORIS O. MATSUI. FRANK PALLONE, JR. 

Æ 


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