Despite Bipartisan Support, Senate Action Doubtful on Industrial Boiler MACT Bill

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Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--The U.S. House of Representatives recently passed a measure to delay the effective date of a new regulation affecting industrial boilers, but companion legislation remains bottled up in a Senate committee.

The House passed H.R. 2250, the "Regulatory Relief Act of 2011," by a 275-142 margin on October 13. But companion legislation in the Senate, S. 1392, which has 39 co-sponsors, including 11 Democrats, has been stalled in the Environment & Public Works Committee since July.

The House and Senate bills would delay for 15 months a rule already finalized by the U.S. Environmental Protection Agency (EPA) (Washington, D.C.) covering hazardous air pollutants from industrial boilers like refineries, manufacturers, chemical processors and cement kilns. That delay would give the agency additional time to more thoroughly consider the thousands of public comments filed in recent years as the rule was being developed. The House and Senate bill also would push off by five years the effective date of any new rule, to give industry time to implement compliance strategies.

In August 2010, the EPA finalized its National Emissions Standards for Hazardous Air Pollutants (NESHAP) rule covering industrial air emissions. For more on that rule, see August 12, 2010, article - EPA Rule on Mercury Emissions May Close up to 27% of U.S. Cement Plants. After the November 2010 elections brought a new crop of Republican lawmakers to Washington, EPA revised that finalized rule to lower the industry's compliance costs. For more on the revision, see February 25, 2011, article - EPA's Revised Industrial Boiler MACT Rules Could Cut Compliance Costs by 50%.

In issuing its revised final Industrial Boiler MACT rule this past February, EPA was operating under a deadline set by a federal court. In December 2010, the agency asked the court for an additional 13 months to consider thousands of public comments received on the rule. Noting that the EPA had already been working on the draft NESHAP rule for three years, the court instructed EPA to finish work on the rule by February 21, 2011.

The Clean Air Act requires the EPA to regulate hazardous air pollutants (HAPs) from industrial boilers at oil refineries, chemical processing plants, cement kilns and other industrial, institutional and commercial facilities. The NESHAP rules applied to two categories of emitters: "major" and "source." The rule requires industrial boilers to use maximum achievable control technology (MACT) to reduce emissions of up to 187 specific HAPs. The rule has been dubbed the "Industrial Boiler MACT" rule. Major air toxics covered in the rule include mercury, soot, lead and dioxins.

The NESHAP rules, scheduled to become effective in 2013, would apply to about 200,000 industrial boilers across the U.S. Roughly 13,000 of those boilers are categorized as "major," while 187,000 emitters are deemed "source" emitters.

The NESHAP rules could close up to 27% of the nation's Portland cement plants, according to the Portland Cement Association (Skokie, Illinois). Portland cement is a widely used ingredient in concrete and stucco. Cement-makers are the nation's third-largest emitter of mercury, after power plants and industrial boilers.

The House of Representatives passed the "Regulatory Relief Act of 2011" last month as part of a broad, and occasionally bipartisan, effort to delay EPA rules affecting industrial air emissions. That bill had 126 co-sponsors, including 25 Democrats. The bill passed with 41 Democrats joining 234 Republicans.

After the bill was passed, Rep. Morgan Griffin (R-West Virginia), one of its original sponsors, said, "The investments required by these rules are irreversible. For those businesses that decide to stop producing their product at a particular location, the job losses are also irreversible. The good news here is that excessive regulations are reversible and fixable. This legislation provides sufficient time for the government to get the rules right and come up with a more reasonable and truly achievable approach that protects the public without imposing unnecessary costs on businesses that employ thousands of hardworking Americans."

The attempt to delay the new NESHAP rule has drawn widespread support from affected industries. For example, Jeffrey Landin, president of the Wisconsin Paper Council, said the Industrial Boiler MACT rule was "costly and poorly thought-out." It relies on "questionable data resulting in regulations with potentially crippling economic costs to pulp and paper mills--$5 billion to $7 billion for the forest products industry nationally." Industrial groups say the bill is an attempt to balance economic and environmental concerns.

The Oregon Prosperity Project, a coalition of businesses and business organizations in that state, said the EPA's rule would impose $14 billion of compliance costs on affected industries, leading to the loss of at least 87,000 jobs nationally in wood products and pulp and paper industries. The effort by the House and Senate to stay implementation of the NESHAP rule would "help to protect Oregon jobs by addressing serious uncertainties and vulnerabilities associated with the development of emissions limits on industrial and commercial boilers."

Senate Minority Leader Mitch McConnell is trying to prod the Environment & Public Works Committee to approve the bill and bring it to a vote in the full Senate. In a speech last week, he said it was time to impose "common-sense limits" on the EPA's actions, according to Kentucky National Public Radio. "That means putting in place laws that protect Americans against the kind of regulatory overreach that too many unelected bureaucrats in Washington seem to live for these days," he said. McConnell estimated the Industrial Boiler MACT rule would threaten about 230,000 jobs in affected industries.

It seems unlikely that the efforts of McConnell and others will succeed: The Senate Environment & Public Works Committee, led by Sen. Barbara Boxer (D-Calif.), has jurisdiction on S. 1392, and there's no requirement for the committee to vote it out. The bill's 39 Republican and Democratic co-sponsors include several Republican members of that committee.

Boxer, a loyal ally of Senate Majority leader Harry Reid (D-Nevada), is unlikely to move the bill, Capitol Hill sources say. Boxer, who portrays herself as an environmentalist, seems unlikely to allow the committee to vote on a bill she views as undermining the EPA and damaging the environment. She has been critical of Republican efforts to reduce the EPA's budget and modify its rules.

President Obama has threatened to veto it if it is passed. But there's good reason to think the bill will never get to the president's desk. The practical realities of a crowded legislative calendar work and an overriding crisis--government funding--work against a vote on any bill not considered "must-pass" legislation. Next week, the bipartisan "super committee" of lawmakers charged with trimming the government's budget deficit by at least $1.2 trillion over 10 years is required to present its plan. Few observers think the committee can meet its statutory deadline, which would trigger automatic budget cuts. These days, Washington lawmakers are scrambling to protect certain agencies, like the Pentagon, from those automatic cuts.

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