Why Senator Collins' Boiler Amendment Guts the Clean Air Act and Does Not Just Delay It

This week the Senate could vote on a deadly amendment to the transportation bill that will abolish clean air standards for the 2nd largest source of industrial toxic air pollution in America. Once enforced, these standards for incinerators and industrial boilers will save up to 8,100 lives annually that are lost to air pollution-induced heart attacks, strokes and other ailments.

Senator Susan Collins (R-ME) has introduced an amendment to block those safeguards from happening. [SA 1660 to S.1813] Her amendment is essentially identical to a bill that House Republicans and industry lobbyists collaborated to produce last year, H.R. 2250. That bill and the Collins amendment nullify existing protections against mercury and toxic air pollution from incinerators and industrial boilers, then delay compliance with any new standards by a minimum of 3.5 years.

The amendment then allows indefinite compliance delays by prohibiting EPA from requiring compliance with new standards any "earlier than 5 years" after issuance, and then eliminating the Clean Air Act's firm compliance deadlines and allowing compliance to be delayed by 8 or 10 or 15 years more. This feature alone belies any claim that the Collins amendment simply delays things a few years.

For just the amendment's minimum 3.5 year delay beyond current law, this will result in up to 28,350 more premature deaths, over 17,000 heart attacks, and more than 180,000 cases of asthma attacks.

Worst of all, the Collins amendment and H.R. 2250 eviscerate longstanding Clean Air Act provisions that require deep reductions in toxic air pollution from incinerators and industrial boilers. This prevents any meaningful replacement standards, permanently. Instead, the legislation would force EPA to adopt standards that are "least burdensome" to industry even if they are most burdensome to the public.

This language may sound benign to some but it is not. It is crucial to understand that this does not mean the "least burdensome" way to achieve the same desired result as under current law, due to the ways that the amendment rewrites and weakens the Clean Air Act. As discussed below, the amendment mandates measures that will accomplish virtually no reductions in toxic air pollution such as mercury, which harms our children’s developing brains.

Despite all this, Senator Collins' office and some other supporters of her amendment insist their only interest is to provide more time for industry to comply. If true, it is baffling why Senator Collins and other Senators would support a House bill that so clearly and irresponsibly guts the core Clean Air Act authority for reducing mercury and all other toxic air pollution.

Let's examine here why the amendment is so much more, and so much worse, than simple delay.

The crucial provision of the Collins amendment is the very last sentence:

For [large and small industrial boilers and incinerators], from among the range of regulatory alternatives authorized under the Clean Air Act . . . including work practice standards . . ., the Administrator shall impose the least burdensome, consistent with the purposes of such Act and Executive Order 13563 . . . .

[Ellipses indicate omitted legal citations].

As is often the case with statutory commands, the most important language is the verb: the Administrator "shall impose" the "least burdensome" alternative from among the range authorized under the entire Clean Air Act. Let's break this down, heeding the italicized terms.

First, the amendment denies EPA any ability or discretion to impose standards other than the "least burdensome." More on that below, but on its face it appears obvious this language means least burdensome to regulated industries. This is the first sharp departure from the Clean Air Act, which requires air toxics standards based on the "best controlled similar source" for new sources and the "best performing 12 percent of the existing sources." [CAA section 112(d)(3)] Already, the Collins amendment is replacing the "best" with the "least."

Second, EPA is required to identify these least burdensome regulatory alternatives from among all authorities in the entire Clean Air Act. This is such an irresponsible departure from the Clean Air Act that it is bewildering.

In 1990, Congress created the Clean Air Act's Maximum Achievable Control Technology (MACT) program. It requires the most protective, rigorous standards for controlling toxic air pollution, out of recognition that Americans were being exposed to neurotoxins and carcinogens and other deadly pollutants. The Collins amendment junks that approach in favor of a roving command to EPA to identify the weakest authority in the entire Clean Air Act that will be the "least burdensome" to industry. Meaning neurotoxins like mercury and lead and carcinogens like dioxins from industrial facilities will now be subject to vastly weaker controls than smog from dry cleaners.

Third, lest anyone misunderstand the import of this roving search for the weakest approach, the Collins amendment highlights the absolute weakest element in the Clean Air Act's air toxics program as just the sort of authority EPA must consider in finding what is least burdensome for industry, so-called "work practice standards."

"Work practice standards" are ones where EPA does not "enforce an emission standard for control of a hazardous air pollutant or pollutants." [CAA section 112(h)]. Instead, EPA adopts equipment, work practice or operational standards that involve, primarily, the proper operation and maintenance of equipment.

What does this mean? Periodic equipment tune-ups, operation and maintenance protocols and paperwork requirements -- not pollution control equipment or emissions standards to reduce hazardous air pollution.

The work practice standards for natural gas-burning units in the major source industrial boiler standards are illustrative [pdf, 80,663-664]. These units are merely required to undergo periodic tune-ups (e.g., every 5 years or annually) rather than meet any kind of actual emission limitations.

Industry commenters had argued [pdf, 15637] to EPA that "work practice standards will minimize [hazardous air pollutant] emissions in a cost effective manner."

So how did these industrial boiler work practice standards fare in reducing emissions of hazardous air pollutants? How many tons per year of hazardous air pollutants will these work practice standards actually reduce?

For new gas units, none. Zero. Zilch. [pdf, 80,621, Table 4] In an illuminating table, EPA projects that work practice standards for existing gas units will achieve a paltry few hundred tons of reductions from the many thousands of natural gas boilers covered by the standards. [pdf, 80,621, Table 4] In contrast, the table shows coal-burning and oil-burning boilers subject to actual emissions limitations constituting MACT standards will reduce hazardous air pollutants by over 85,000 tons annually. (To be sure, coal- and oil-burning units produce more pollution than natural gas units to begin with, but emissions limitations for natural gas units still would have produced significantly greater HAP reductions than a few hundred tons.)

The Collins amendment requires EPA to impose equally meaningless work practice standards for coal and oil boilers – or worse, depending upon what EPA concludes will be "least burdensome" to industry among the authorities sprinkled throughout the Clean Air Act that were never intended to address carcinogens and other toxins. The Collins amendment thus repeals – and eliminates any possibility of – standards that will reduce mercury by approximately 3,600 pounds per year and acid gases by 37,000 tons per year, totaling over 85,000 tons in toxic reductions.

This is unsurprising, since work practice standards represent the most hollow authority in the Clean Air Act, used for situations where technology is not feasible or available. That is not the case for incinerators and industrial boilers burning coal, oil and waste. 

In case you think these standards for natural gas boilers might be an anomaly, consider these other historic examples of meaningless work practice standards:

  • For certain emergency generators, EPA required only that the sources periodically change oil and filters and inspect spark plugs, hoses, and belts. [pdf, 51,572-3] The agency identified no reductions in hazardous air pollution.
  • For chlor-alkali plants, EPA set emissions limitations and work practice standards (inspections, reporting, tune-ups), but could not “quantify the mercury emissions reductions that would be achieved by the final work practice standards.” [pdf, 70,908]
  • For coke oven battery manufacturing standards, operators were required to "visually inspect each oven prior to pushing by opening the door damper and observing the bed of coke," then maintain records for each visual inspection. [pdf, 18,009-10] EPA did not claim any emissions reductions resulted from these practices.

I am unaware of any past Clean Air Act work practice standard that has reduced hazardous air pollutants by more than 10%. Surely that does not represent the level of mercury, lead and arsenic reductions that Congress thinks should be achieved from incinerators and industrial boilers burning coal, oil or waste.

Congress cannot believe that Americans deserve to go unprotected against neurotoxins and carcinogens by allowing the country's 2nd largest industrial source of mercury pollution and other toxins to be subject to periodic tune-ups and maintenance practices, with no pollution control equipment. That approach would relegate clean air policy to not just the period pre-dating the 1990 Clean Air Act amendments but pre-1970, before that landmark law was adopted. And incinerators and industrial boilers would secure amnesty from health standards that over 100 other industrial sources, including power plants, must meet.

But what about those that say this section of the Collins amendment just mentions and echoes a longstanding executive order that requires EPA and other agencies to consider the least burdensome alternative to industry? Some might argue that this element of the Collins amendment does no more and no less than the current executive order.

This is plainly wrong. First, to state the obvious, if the Collins amendment did nothing different from the executive order, there would be no need for this section of the amendment. So clearly it does something.

What it does is quite clever – and insidious. The amendment forces EPA to abandon the longstanding requirement to adopt Maximum Achievable Control Technology (MACT) standards if such standards require more from industry than work practice standards or any other weaker alternative to MACT. And MACT standards always will require greater emissions reductions than the work practice standards that the amendment pointedly promotes.

In sharp contrast, the executive order [pdf] instructs EPA to consider burden and costs to industry while carrying out and enforcing statutory requirements. The executive order does not eliminate the legal requirement to cut toxic emissions significantly using MACT standards based upon the best-performing sources. Most important, the executive order does not replace protective Clean Air Act requirements with the Collins amendment mandate that EPA "shall impose" the least burdensome alternative on polluters from among all statutory authorities.

Indeed, the Collins amendment fundamentally distorts the language in the executive order, which requires an agency to "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."

So the executive order's concern is with burdens to all of us, while the Collins amendment is concerned only with burdens to the polluting industries that harm us. The executive order's concern is to be consistent with existing statutes, while the Collins amendment upends and weakens the Clean Air Act.

The Collins amendment language originated in the very first House bill attacking mercury and air toxics standards in the 112th Congress, H.R. 2250, which targeted clean air safeguards against mercury and other toxic air pollution from incinerators and industrial boilers.

I testified [pdf] at the September 2011 House hearing that was convened to consider two bills (H.R. 2250 & 2681) repealing mercury and air toxics standards for incinerators, boilers and cement plants, while eviscerating any possibility of future safeguards by employing the same "least burdensome" alternative language.

EPA's air chief, Gina McCarthy, testified at the hearing that it was unclear to her whether the "least burdensome" language meant least burdensome to the public or least burdensome to industry. The sponsor of the boiler bill, Rep. Morgan Griffith (R-VA), was visibly incredulous and derisive. Of course it meant least burdensome to industry, he said, and his manner conveyed affront that anyone could think otherwise. Congressman Griffith was under no illusions that his bill is just about delay.

Now Senator Collins has introduced an amendment that is essentially Congressman Griffith's House bill, and her office has claimed the amendment's intent is mere delay. Industry lobbyists have written a letter [pdf] supporting the Collins amendment that dishonestly describes the amendment as affecting only timing issues for the industrial boiler standards. Perhaps not surprisingly, the industry letter deceptively omits any mention of the severe weakening changes to the Clean Air Act.

The letter even misrepresents the amendment’s impact on compliance timing, which it says is extended "from three to five years." In fact the amendment prohibits EPA from requiring compliance any "earlier than 5 years" after the regulations are effective, strips the Clean Air Act's compliance deadline, and does not impose any firm replacement deadline.

It is already irresponsible to allow up to 28,350 more premature deaths, over 17,000 heart attacks, and more than 180,000 cases of asthma attacks by delaying clean air safeguards by a minimum of 3.5 years. But surely it's beyond the pale to allow that health toll to continue indefinitely by eliminating any compliance deadlines, permanently crippling the law and preventing that damage from being stemmed.

If the amendment is just about delay, that could be addressed in a few sentences. Instead, this multi-page amendment reflects a harmful, irresponsible agenda that has nothing to do with simple delay and that will debilitate the Clean Air Act to deny Americans meaningful protections against mercury and other toxic air pollution.

The Collins amendment is bad legislation reflecting an irresponsible assault on substantive Clean Air Act authorities. It does not deserve to become law or even gain the support of a majority of United States Senators.