Volume 157, No. 109 covering the 1st Session of the 112th Congress (2011 - 2012) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the Environmental Protection Agency was published in the Senate section on pages S4722-S4727 on July 20, 2011.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEVIN (for himself and Mr. Begich):
S. 1390. A bill to amend the Internal Revenue Code of 1986 to simplify, modernize, and improve public notice of and access to tax lien information by providing for a national, Internet accessible, filing system for Federal tax liens, and for other purposes; to the Committee on Finance.
Mr. LEVIN. Mr. President, as Congress continues to debate ways to reduce our national deficit, some Members of Congress are taking the time to reflect on the state of the Federal tax system and consider how we can simplify it and make it more efficient and fair. Today, as part of that effort, I along with my colleague Senator Begich are introducing legislation aimed at simplifying and modernizing the existing system for filing Federal tax liens, a key tool used by the Treasury to collect unpaid taxes. The bill has been endorsed by Citizens for Tax Justice, Tax Justice Network, Public Citizen, US Public Interest Research Group, and the FACT Coalition, an organization of public interest and business groups concerned with tax fairness.
It has been 45 years since Congress has made any significant changes to the laws regulating how the Internal Revenue Service, IRS, files Federal tax liens. Right now, outdated laws are forcing the IRS to waste taxpayer dollars on an old-fashioned, inefficient, and burdensome paper-based filing system spread out over 4,000 locations that should be replaced by a modernized electronic filing system capable of operating at a fraction of the cost. It is time to bring the Federal tax lien system into the 21st century. The Tax Lien Simplification Act, which we are introducing today, will simplify the process of recording tax liens at an estimated ten-year cost savings of $150 million, while at the same time improving taxpayer service by making it easier to verify lien information and speed up the release of liens after taxes are paid.
Tax liens are a principal way to collect payment from persons who are delinquent in paying their taxes. By law, Federal tax liens arise automatically ten days after a taxpayer's failure to pay an assessed tax. The lien automatically attaches to the taxpayer's real and personal property and remains in effect until the tax is paid. However, the tax lien is not effective against other creditors owed money by the same taxpayer, until a notice of the Federal tax lien is publicly recorded. Generally, between competing creditors, the first to file notice has priority, so the filing of tax lien notices is very important to the Government and to the taxpaying public if taxes are to be collected from persons owing taxes.
Current law requires the IRS to file public notices of Federal tax liens on paper in State, county, or city recording offices around the country, to ensure other creditors receive notice of the government's claim. There are currently more than 4,100 of these recording offices, many of which have developed specific rules regulating how such liens must be formatted and filed in their jurisdictions. This patchwork system developed more by default than by plan, as different offices developed procedures for filing a variety of legal documents affecting title to real and personal property.
In 1966, to help the IRS comply with a proliferating set of filing rules for Federal tax liens, Congress passed the Tax Lien Act to standardize certain practices. This act provided, for example, that liens against real estate had to be filed where the property was located, and required each State to designate a single place to file Federal tax liens applicable to personal property. Most States subsequently adopted a version of the Uniform Tax Lien Filing Act, enabling the IRS to file a notice of tax lien in each locality where the taxpayer's real estate is located, and a single notice where the taxpayer resides to reach any personal property. For corporations, States typically require the IRS to file a notice to attach real estate in each locality where the real estate is located, and a separate notice, usually at the State level, to attach other types of property. There are often additional rules for trusts and partnerships. The end result of the law was to reduce some but not all of the multiple sets of rules regulating the filing of Federal tax liens.
The bottom line today is that, in most cases, tax liens have to be physically filed in one of over 4,000 recording offices. In most cases, that filing is accomplished by mail, using paper documents. Some jurisdictions also allow electronic filings, but those jurisdictions are few and far between. The same is true if a lien has to be corrected, or a related certificate of discharge, subordination, or nonattachment needs to be filed, or when a tax liability has been resolved and the IRS wants to release a lien. Each action usually requires a paper filing in one or more recording offices and requires the additional involvement of third parties. If a paper filing is lost or misplaced, the IRS often has to send an employee in person to deal with the problem, adding travel costs to other administrative expenses.
The paper filing system imposes similar burdens on other persons dealing with the tax lien system. Any person who is the subject of a tax lien, for example, or who is a creditor trying to locate a tax lien, is required to make a physical trip to one or more recording offices, which may not even be in the same State as the taxpayer, to search the documents, see if a lien has been filed, and verify or examine the information. Currently, there is no single database of tax liens that can be accessed by any taxpayer that is the subject of a federal tax lien, by any creditor, or by any member of the public. Not even IRS personnel have access to such a tax lien database. It does not exist.
The result is an inefficient, costly, and burdensome paper filing system that can and should be completely revamped. Businesses across the country learned long ago that electronic filing systems outperform paper; they save personnel costs, material costs, time, and aggravation. Government agencies have learned the same thing as they have moved to electronic databases and recordkeeping, including systems made available to the public on the Internet. Among the many examples of government-sponsored, Internet-based systems currently in operation are the contractor registry operated by the General Services Administration to allow persons to register to bid on federal contracts, the license registry operated by the Federal Communications Commission to allow the public to search radio licenses, and the registry operated by the U.S. Patent and Trademark Office to allow the public to search currently registered patents and trademarks. Each of these systems has saved taxpayer money, while improving service to the public.
Just as government agencies gave up the horse and buggy for the automobile, it is time for the IRS to move from a decentralized, paper-
based tax lien filing system to an electronic national tax lien registry. But the IRS' hands are tied, until Congress changes the laws holding back modernization of the federal tax lien filing system.
The bill we are introducing today would make the changes necessary to enable the IRS to take immediate steps to simplify and modernize the federal tax lien filing system. The operative provisions would require the establishment of a national registry for the filing of tax lien notices as an electronic database that is Internet accessible and searchable by the public at no cost. It would mandate the use of this system in place of the existing system of paper filings. It would establish the priority of federal tax liens according to the date and time that the relevant notice was filed in the national registry, in the same way that priorities are currently established from the date and time of a paper filing. The bill would also shorten the time allowed to release a tax lien, after the related tax liability has been resolved, from 30 days to 20 days.
To establish this new electronic filing system, the bill would give the Treasury Secretary express authority to issue regulations or other guidance governing the establishment and maintenance of the registry. Among other obligations, Treasury would be required to ensure that the registry was secure and prevent data tampering. Treasury would also be required to work with industry and other potential users of the registry to develop accurate search criteria to identify persons who are the subject of a tax lien. In addition, prior to the implementation of the national registry, the Treasury Secretary would be required to review the information currently included in public tax lien filings to determine whether any of that information should be excluded from disclosure on the Internet. For example, the Treasury Secretary would end disclosure of social security numbers that are currently included in some tax lien filings. While such identifying information could continue to be included in a tax lien filing to ensure that the filing is directed toward the correct person, the registry could be constructed to prevent such information from being disclosed publicly and instead provide such information only upon request from appropriate persons involved in the enforcement of the tax lien or collection of the tax debt. By requiring this information review prior to implementing the national tax lien registry, the bill would provide greater privacy protections for taxpayer information than occurs in current tax lien filings.
To ensure a successful transition to the new system, the bill would require the Treasury Secretary to establish one or more pilot projects to be carried out within 2 years of enactment of the bill, and require a successful nationwide test of the tax lien registry before it can be made operational. The bill would also allow the IRS to continue to use the existing paper-based tax lien filing system, in parallel with the new system, for an appropriate period to ensure a smooth transition.
Moving to an electronic tax lien filing system using an Internet-
based national registry of tax liens, would accomplish at least three objectives. It would save taxpayer dollars, streamline the process for filing, correcting, and releasing tax liens, and improve taxpayer and public access to tax lien information.
The IRS estimates that moving from a paper-based tax lien system to an Internet-based, Federal tax lien registry would save about $150 million over 10 years. These savings would come from the elimination of State filing fees, paper and mailing costs, IRS administrative and travel costs related to paper filing problems, and the cost of lost taxes whenever the IRS makes an error or a tax lien filing is misplaced or delayed. Filing fees, for example, vary widely from State to State, but typically cost at least $10 per filing, and in some States cost as much as $150. If a taxpayer has real estate in multiple jurisdictions, those costs multiply. A Federal tax lien system would standardize costs for all taxpayers, and require only one filing across all jurisdictions.
In addition, right now, an IRS service center is currently charged with filing tax liens nationwide and complying with the myriad filing rules in effect in the 4,100 recording offices across the country. Eliminating the paper filing system would free virtually that entire service center for other taxpayer services and enforcement work.
Electronic filing would not only save money, it would improve taxpayer service. Taxpayers who are the subject of a tax lien filing, for example, would benefit from an electronic registry in several ways. First, taxpayers would be able to review their liens as soon as they are filed online, without having to make a physical trip to one or more recording offices. Second, taxpayers would have an easy way to look up their liens on multiple occasions, identify problems, and correct any errors. A single tax lien registry would be particularly useful for taxpayers who move during the ten years that a tax lien can be in effect and have to look up liens in jurisdictions where they no longer live.
Third, once the underlying tax liability is resolved, the IRS would be required to release the tax lien in 20 days, instead of the 30 days allowed under current law. The longer 30-day period is necessitated by the current complexities associated with filing a paper lien in one or more offices across the country, requiring the action of multiple parties in different jurisdictions. These complexities would be eliminated by the establishment of an electronic registry. The registry would also enable taxpayers, after they pay their taxes, to make sure their liens have been lifted.
Creditors who need to research Federal tax liens would also benefit from a single electronic registry. Lenders, security holders and others, for example, would be able to use a simplified search process that could take place online and would not require procedures that, ultimately, require physical trips to multiple locations. A single tax lien registry would make it easier to locate tax liens for persons who have moved from the jurisdictions where the liens were first filed. Simplifying the search process would also provide greater certainty that all tax liens were found. The ability to research Federal tax liens remotely and instantaneously should be of particular benefit to larger lenders and to creditors of taxpayers with assets in more than one county or State.
Tax liens are not a topic that normally excites the public's interest. But sound tax administration requires attention to efficient, effective and low-cost filing systems. Saving taxpayer dollars is more important than ever as Congress looks for ways to tackle the deficit.
Federal law is currently impeding development of a more efficient, cost effective tax lien filing system. Amending the law as indicated in the Tax Lien Simplification Act to streamline the tax lien filing system, moving it from a paper-based to an electronic-based system, would not only advance the more efficient, effective tax system we all want, it would also save taxpayer money. At the same time, it would make the system work better for individual taxpayers by reducing the possibility for mistakes and speeding up the release of liens for taxpayers who have paid. Modernizing our tax lien filing system makes sense in every way. I urge our colleagues to join us in enacting this bill into law this year.
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By Ms. COLLINS (for herself, Mr. Wyden, Mr. Alexander, Ms.
Landrieu, Mr. Toomey, and Mr. Pryor):
S. 1392. A bill to provide additional time for the Administrator of the Environmental Protection Agency to issue achievable standards for industrial, commercial, and institutional boilers, process heaters, and incinerators, and for other purposes; to the Committee on Environment and Public Works.
Ms. COLLINS. Mr. President, I rise today to introduce the EPA Regulatory Relief Act of 2011. I am pleased to be joined in this effort by my colleagues Senators Wyden, Alexander, Landrieu, Pryor, and Toomey. Our legislation is straight forward: it would allow the EPA the time it needs, by its own estimate, to adequately consider and propose a reasonable, workable rule that affects boilers.
Our bill includes four key provisions. First, it provides the EPA with the 15 months it requested to properly analyze the best methods for implementing the application of the Clean Air Act to certain boilers. Second, it will give businesses adequate time to comply with any requirements the EPA adopts by extending the compliance deadline from 3 years to 5 years. Third, our bill will direct the EPA, when developing the new rules, to ensure that renewable and carbon-neutral materials remain classified as fuel and not solid waste. Fourth, our legislation will help ensure that the rules are achievable by real-
world standards consistent with the President's directive to improve Federal regulations.
At a time when manufacturers are struggling to retain jobs, it is essential that this rule not jeopardize thousands of jobs in manufacturing, particularly in the forest products industry, by imposing billions of dollars of new costs. Our legislation provides common sense solutions to the challenges the EPA is facing in attempting to draft and implement these complicated rules, which if written without proper data, analysis, and consideration, would cost the industry billions of dollars and potentially thousands of jobs.
To be sure, the EPA performs some vital functions in helping to ensure that the air we breathe is clean and the water we drink is safe. We need, however, to make sure that as the EPA issues new regulations, it does not create so many roadblocks to economic growth that it discourages private investment, which is the key to maintaining and creating jobs.
The EPA's proposed ``boiler MACT'' rules, which would affect tens of thousands of boilers, have been an issue of great concern to many of my constituents in Maine. The forest products industry, in particular, is the economic backbone of many rural areas in our country, including in Maine. Mill managers and workers in Maine have expressed their concern to me about the impact of imposing excessively costly regulations on their mills at this time of economic hardship.
Since these rules were first proposed in April 2010, I have been very troubled that the cost of implementation would be far greater than EPA originally estimated. According to industry estimates, this rule could cost Maine businesses alone hundreds of millions of dollars and put many jobs at risk, when less expensive approaches could be used to address emissions from boilers. This is simply unacceptable in this economic climate.
Furthermore, these rules might force some of our mills in Maine to stop using biomass, a source of renewable energy, and instead dump the biomass in landfills and switch to fossil fuels. This makes no sense. As the President has stated, biomass is an important renewable energy source that our nation should promote in working to reduce our dependence on foreign oil. Converting to fossil fuels alone would also cost mills hundreds of millions of dollars.
My colleagues and I have been concerned about this issue since the EPA proposed these new boiler MACT rules in April 2010. Last year, 40 of my Senate colleagues, including 17 Democrats, wrote to the EPA expressing our deep concern that the boiler MACT regulations would impose onerous burdens on U.S. manufacturers. We asked the EPA to set emissions standards based on what real-world, best-performing units actually can achieve. This letter reflected the widespread bipartisan concern about the proposed boiler MACT rules.
It is important to remember that, under The Clean Air Act, a Maximum Achievability Control Technology rule, or ``MACT'' rule, is designed to reduce emissions to an achievable degree while also considering the economic impact on businesses. The MACT rule must also set its standard according to the best performing practices existing facilities. However, in the case of the boiler MACT rule, the EPA cherry-picked data without considering the real world operating practices of the facilities that will be affected by this rule.
In March 2011, I also asked Administrator Jackson at a hearing to explain why the EPA is not considering alternative standards for emissions since the MACT limits may be far more stringent than necessary to protect public health. Additionally, I have pressed officials at the Office of Management and Budget, such as Administrator of the Office of Regulatory Affairs, Cass Sunstein, about the very negative impacts EPA's Boiler MACT rules would have on the forest products industry.
In 2010, the EPA did request more time from the court to analyze and prepare the boiler MACT rules after it received thousands of comments that raised technical and cost concerns the agency had not originally considered. In response, the EPA appealed for an additional 15 months to implement the rule, noting that the public interest would be best served if it could obtain additional input from the public on these complex rules. Unfortunately, this plea was rejected by the D.C. District Court, and the agency was forced to re-propose the rule in a mere 30 days.
The stakes are too high for the EPA to be forced to rush a complex, multi-step process that could cost thousands of American jobs. Our bill will provide a balance that will help the EPA protect the environment and public health while ensuring that businesses in Maine and throughout the country are not faced with needlessly onerous burdens.
The EPA has claimed that the cost of the final rule has been lowered by 50 percent since the proposed rule last year; however, this is little comfort to manufacturers because the initial rule, according to industry estimates, was approximately $4 billion in capital costs to the forest industry and over $14 billion for all industrial sectors nationwide. The industry experts that I've talked with are very concerned that the standards are being set so high that they are going to have to make a massive new investment at a time when they can least afford it.
The EPA is making progress in reducing the costs and coming up with a more practical approach to the boiler MACT rules, and I believe we can achieve the health benefits that we desire without putting thousands of people out of work. This bill will help ensure that result.
I look forward to working with my colleagues on both sides of the aisle to ensure that the EPA has sufficient time to propose a well thought-out rule that minimizes the negative effect on the economy, while helping to protect public health and the environment.
Mr. President, I ask unanimous consent that a letter of support be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
July 20, 2011.Hon. Susan Collins,U.S. Senate, Washington, DC.Hon. Ron Wyden,U.S. Senate, Washington, DC.
Dear Senators: We are writing to express our united and strong support for legislation you are introducing today and for H.R. 2250, the ``EPA Regulatory Relief Act of 2011,'' bipartisan legislation to address the serious concerns that remain with EPA's Boiler MACT rules. As they exist today, the final Boiler MACT rules will have serious economic impacts on a vast array of facilities across the industrial, commercial and institutional sectors. These rules place at risk tens of thousands of high-paying manufacturing jobs that our nation cannot afford to lose.
As finalized, the Boiler MACT rules are unaffordable, just as the proposed rules were. The rules are not achievable for real-world boilers across the range of fuels and operating conditions. EPA also has created a presumption that materials commonly used as fuels are wastes subject to the extremely costly and stigmatizing incinerator standards. This would not only impose billions of dollars in unreasonable costs, but it also would cause millions of tons of valuable materials to be diverted to landfills and replaced with fossil fuel--a bad result for the environment.
As EPA has acknowledged, the rules were finalized with serious flaws because EPA was forced to meet a strict court-ordered deadline. The final Boiler MACT rule alone would cost over $14 billion in capital for the manufacturing sector, plus billions more in annual operating costs. Complying with the incinerator standards could cost several billion dollars more in capital.
Legislation is needed to resolve serious uncertainties and vulnerabilities, including to: ensure the rules are stayed for an adequate and certain period, as EPA's current administrative stay is being challenged in court; allow EPA adequate time to re-propose the rules and get them right, including time for stakeholders to conduct more emissions testing and to avoid mistakes that occur when rulemakings of this scope and importance are rushed and become vulnerable to legal challenge; provide direction and support for EPA to use the discretion it already has under the Clean Air Act and Executive Order 13563 to add flexibility and make the rules achievable; clarify that using non-hazardous materials as fuels does not result in boilers being treated as incinerators; and give facilities more time to comply with the complex and capital-intensive requirements of the rules.
If enacted, the ``EPA Regulatory Relief Act'' will provide the much-needed certainty and time for EPA to get the rules right and for businesses that will be investing billions of dollars to rationally plan for the capital expenses. This legislation will preserve jobs and the competitiveness of the U.S. manufacturing sector while protecting the environment.
Thank you for your leadership on this issue of great importance to our industries and our workers.
Sincerely,
American Forest & Paper Association, American Chemistry
Council, American Home Furnishings Alliance, American
Petroleum Institute, American Wood Council, Association of American Railroads, Biomass Power Association, Brick
Industry Association, Business Roundtable, Cement Kiln
Recycling Coalition, Composite Panel Association,
Construction Materials Recycling Association, Corn
Refiners Association, and Council of Industrial Boiler
Owners.
Hardwood Plywood and Veneer Association, International
Falls Chamber of Commerce (MN), National Association of
Manufacturers, National Federation of Independent
Business, National Oilseed Processors Association,
National Solid Wastes Management Association, NORA, An
Association of Responsible Recyclers (formerly the
National Oil Recyclers Association), Rubber
Manufactures Association, Society of Chemical
Manufacturers and Affiliates, The International
Association of Machinists and Aerospace Workers, The
United Brotherhood of Carpenters and Joiners of
America, Treated Wood Council, U.S. Chamber of
Commerce, and Virginia Forestry Association.
Mr. WYDEN. Mr. President, biomass energy development is not only a great economic opportunity for Oregon, it is an essential piece of the forest health puzzle. Biomass energy helps create a market and a way to pay for forest thinning and hazardous fuels programs. It is also a way for keeping local timber and wood products mills in business at a time when the industry, like many in the U.S. is going through hard times. Biomass also provides an important renewable energy option for the Nation as a substitute for coal and other fossil fuels. Every region of the country has biomass energy opportunities even if the exact nature of the biomass that would be used varies from region to region. Today, I am joining my colleague from Maine, Senator Collins, and a bipartisan group of Senators, in introducing legislation to make sure that the U.S. Environmental Protection Agency can, and will, issue regulations under the Clean Air Act and the Solid Waste Disposal Act that ensure that the owners of these mills and biomass energy plants can continue to invest in them and maintain and create the jobs that are so badly needed.
Pending Environmental Protection Agency regulations governing boilers and incinerators will make it very difficult for biomass energy to be used in the U.S. To its credit, EPA recognizes this fact and has repeatedly proposed to rewrite those regulations to address the concerns of biomass energy users, the forest products industry, and other industries. The legislation being introduced today is aimed at making sure that EPA can collect the necessary data and reissue its regulations in an orderly process that preserves biomass energy as a national energy option and allows economically hard pressed timber and forest products mills to remain in operation.
On December 7, 2010, EPA, which was under court order to issue new Clean Air Act regulations for boilers and incinerators, filed a request with the Federal Court overseeing the boiler emissions rules asking for a delay in the court-ordered deadline for issuing the rules by 15 months so that EPA could reevaluate its own proposed rules and address the problems raised by the forest products industry and others. However, the Federal judge hearing the case rejected EPA's request and gave EPA just a month to fix the rule. In February 2011, EPA met that deadline, but continuing to recognize the flaws in its regulations, it immediately triggered an administrative process known as reconsideration to allow affected industries to provide more information and for the agency to revise its regulations. In May, EPA agreed with industry comments that the rule needed to be reviewed and it agreed to stay, or delay, the implementation of the existing Clean Air Act rules for boilers and incinerators. Unfortunately, EPA did not issue a stay of a related rule which defines which materials can be burned in those boilers and which need to be burned in incinerators. EPA has now proposed a schedule, which it confirmed in letters to me and several other Senators, to consider additional comments by industry and others and develop new Clean Air Act rules.
Unfortunately, this is not the end of the story. Stays can be lifted by the courts. This legislation would statutorily affirm the EPA's stay of the Clean Air Act rules. And it would affirm EPA's proposal to issue new regulations by a date certain. That date would be 15 months from the date of enactment, the same period of time EPA claimed was necessary to draft a new rule. The goal here, which I believe EPA shares, is to issue Clean Air Act regulations that make sense, not to do away with Clean Air Act regulations for boilers and incinerators.
On the other hand, by not agreeing to make changes to the ``what's a fuel and what's not'' rule, EPA has made it very likely that many widely used boiler fuels can no longer be used, like wood scrap from door and window mills. And some results of the rule make little practical sense. For example, scrap tires that are picked up at a tire shop can continue to be burned as a fuel. Scrap tires that are picked up at a landfill cannot. EPA has indicated that it will try to develop regulatory guidance to help industry navigate the regulatory confusion it has created.
I appreciate the fact that EPA recognizes that there is a problem with the fuel-or-waste rule and that they are offering to try to fix it by issuing regulatory guidance. However, I am not convinced that EPA can fix the problems with the rule by just by issuing guidance. This legislation will direct EPA to establish new rules on what materials can be burned as boiler fuel, and which cannot, and give EPA clear statutory direction on what can be included. This direction limits allowable fuels to a specific list so that there are no surprises or backdoor exceptions. EPA can add to the list only after notice and comment so the public knows what, if any, additions are being made.
This process for defining which fuels can be burned in a boiler and which cannot is very important to me. While it makes sense to continue to allow many materials that the wood products industry and others have used as boiler fuels for generations, I do not think that it's appropriate to simply decide that any fuel that was used in a boiler in the past should be grandfathered in. The provisions in this bill defining what materials can be burned in a boiler ensure that will not be the case. This was a major issue in litigation surrounding earlier versions of these rules and I do not think it is wise to ignore this fact. Congress has the opportunity to try to address the legitimate concerns about what is being burned in these boilers and it should.
Finally, the bill would extend the normal 3 year period for boilers to come into compliance to 5 years. It is my hope that once there a final regulations and industry knows what it has to do that it will not take that long. However, there some 2000 boilers in the U.S. that would all have to upgrade or replace their units all at the same time and coincident with similar rules going into effect for electric utility company boilers. This extra time will mean that there will be no excuse for not meeting the final standards.
Mr. President, I ask unanimous consent that letters of support be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
U.S. Environmental
Protection Agency,
Washington, DC, June 27, 2011.Hon. Ron Wyden,U.S. Senate,Washington, DC.
Dear Senator Wyden: I appreciate the opportunity to meet with you on June 16, 2011, regarding the Environmental Protection Agency's (EPA) Non-Hazardous Secondary Materials
(NHSM) rule, the Boiler Maximum Achievable Control Technology
(MACT) rule, and the Commercial and Industrial Solid Waste Incinerators (CISWI) rule. Thank you for your constructive engagement on these priority issues. We are currently exploring various pathways under existing authority to address your concerns.
As you know, the Boiler MACT and CISWI standards are currently subject to an administrative stay. Today, as part of a filing with the United States Court of Appeals for the District of Columbia Circuit, the EPA announced the intended schedule for reconsideration of the boilers and CISWI rules. To ensure that the agency's standards are based on the best available data and that the public is given ample opportunity to provide additional input and information, the agency intends to propose the reconsideration rule by the end of October 2011 and issue a final rule by the end of April 2012. This is the best approach to establish technically and legally sound standards that will bring significant health benefits to the American public.
We believe that this stay and the reconsideration period will provide ample time to administratively address the issues raised by various stakeholders on these corresponding rules.
The NHSM rule, which we discussed in our meeting, aims to ensure that the burning of solid waste is subject to appropriate emission controls required under the Clean Air Act and that exposure to harmful pollutants is minimized. We understand that biomass derivatives have long been used for energy purposes in the wood products industry and we believe our rule allows such use to continue without being subject to the CISWI standards, provided that criteria, referred to as
``legitimacy'' criteria, are met.
Since promulgation of our rule, questions have arisen about how these criteria will be applied and our goal has been to ensure that the flexibility provided by the rule is in fact realized. To that end, we have held several meetings with industry representatives to discuss and understand their concerns and to review newly available data. In addition, on June 21, 2011, my Assistant Administrator for Solid Waste and Emergency Response, Mathy Stanislaus, met with representatives of several industries that use biomass derivatives and other non-hazardous secondary materials as fuel to ensure that they understand the significant flexibility already afforded by the rule, and to discuss the EPA's concepts for further clarifying that flexibility.
As part of that discussion, Mr. Stanislaus explained that one of the options that EPA is considering is issuing clarifying guidance regarding the Agency's legitimacy criteria. Such guidance is a useful tool that is often used under the Resource Conservation and Recovery Act (RCRA) to address these types of issues. The guidance could provide a clear guidepost for comparing traditional fuels with secondary materials. It potentially could clarify that certain nonhazardous secondary materials would not be considered solid waste when combusted and that the units combusting those materials can continue to be used as fuels without having to meet the CISWI standards. Mr. Stanislaus requested that the industry representatives provide the Agency with supporting data on traditional fuels that could further inform the development of such guidance, and asked for feedback on the approach he outlined. In addition to this approach, the Agency is also exploring other options.
We recognize that stakeholders have also raised other issues with the NHSM rule. We are continuing to evaluate those issues expeditiously.
I believe we have made significant progress in addressing the concerns raised by the industry. I will continue to watch the issue closely and keep you informed. My goal is to bring these issues to closure as soon as possible.
Sincerely,
Lisa P. Jackson,Administrator.
____
U.S. Environmental Protection Agency, Office of Solid
Waste and Emergency Response,
Washington, DC, July 11, 2011.Hon. Ron Wyden,U.S. Senate,Washington, DC.
Dear Senator Wyden: Thank you again for the constructive dialogue regarding issues relating to EPA's Non-Hazardous Secondary Materials (NHSM) rule, the Boiler Maximum Achievable Control Technology (MACT) rule and the Commercial and Industrial Solid Waste Incinerator (CISWI) rule. In the Administrator's letter of June 27, 2011 she indicated that the agency is exploring various pathways to address your specific concerns regarding implementation of the NHSM rule. EPA is committed to issuing guidance to assist industry in applying the legitimacy criteria, and had requested that industry representatives provide the agency with supporting data to further inform the development of such guidance.
We received additional information from industry and based on this information and further discussions, we have developed the enclosed concept paper for the development of guidance. The paper identifies approaches to the guidance that EPA continues to evaluate for determining whether concentrations of contaminants in the NHSM are ``comparable'' to concentrations of those same contaminants in traditional fuels. These comparisons are important in ensuring that NHSM are being legitimately recycled and are not solid wastes, as well as recognizing the varied uses of such secondary materials as product fuels.
We are optimistic about our ability to develop guidance that meaningfully addresses the industry concerns and we are giving it the highest priority within the agency. We intend to complete internal development of draft guidance based on the concept paper by August 31, 2011. In addition, we continue to evaluate all available options available to address the issues raised.
Please be assured that EPA will continue to keep you informed of our progress in addressing the issues involved with the NHSM rule, as well as the related Clean Air Act rulemakings. If you or your staff have any questions regarding the enclosed concept paper, please contact me or your staff may call Carolyn Levine in EPA's Office of Congressional and Intergovernmental Relations at (202) 564-1859.
Sincerely,
Mathy Stanislaus,Assistant Administrator.
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