TESTIMONY OF MIKE BENOIT
BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety
October 14, 1999

Introduction

Chairman Inhofe, Senator Graham and Members of the Subcommittee, good morning. Thank you for inviting me to testify at today's hearing on reauthorization of the Clean Air Act. My name is Mike Benoit. I am Executive Director of the Cement Kiln Recycling Coalition (CKRC), a trade association representing cement producers that recover energy from hazardous wastes along with companies that provide equipment and services to cement manufacturers. As I'm sure you know, cement is the key ingredient in concrete which is an essential building material that is integral to our nation's infrastructure. In the U.S., there are 118 cement plants located in 37 states. 52 of those plants use energy-bearing wastes as alternative fuels to fire their high-temperature cement kilns. Of those 52, seventeen cement plants in ten states recover energy from over 1,000,000 tons per year of regulated industrial waste materials in their high-temperature kilns, resulting in energy savings equivalent to roughly 22 trillion Btu per year, or the equivalent of more than 6 billion kilowatt-hours.

Today, this Subcommittee undertakes the difficult task of preparing for the reauthorization of the Clean Air Act. The statute is one of the most complex in U.S. environmental law and surely would benefit from some improvements. In that regard, there are some general principles that we hope will guide the Subcommittee as it proceeds. For example, regulatory action under the Act should:

adequately consider costs and risk reduction benefits; be derived from sound scientific principles that advance technological development;

be based upon consistent application and defensible interpretation of the law; be implemented and enforced in a manner designed to ensure predictability, fairness, and compliance; and

accommodate and encourage energy recovery technologies that reduce air pollution

Our industry is subject to extensive regulation pursuant to the Clean Air Act. CKRC's member companies have very recently become subject to EPA's National Emission Standards for Hazardous Air Pollutants (NESHAPS): Final Rule for Hazardous Air Pollutants for Hazardous Waste Combustors (HWCs), or as it is called, the HWC Maximum Achievable Control Technology (MACT) rule, which was promulgated on September 30, 1999. (64 Fed. Reg., 52827, September 30, 1999) Our six years of experience with the development of the HWC MACTrule is the topic of my testimony today and is presented here as a case study that we hope can shed some light upon possible improvements to the Act, and to Section 112 in particular.

EPA did many strange and unprecedented things in the HWC rule. Unfortunately, many of them were aimed at achieving regulatory outcomes that could not be obtained by following the letter and spirit of Section 112 of the Clean Air Act. EPA focused on and pursued objectives that are plainly not authorized by the Clean Air Act as the Agency inappropriately invoked its RCRA authority or simply acted arbitrarily to go far beyond the provisions of Section 112 and its own internal precedents in previous CAA rulemakings. For reasons that will become clear, EPA became preoccupied with the competitive structure of the market for hazardous waste combustion and relied upon numerous unauthorized policy objectives which, ultimately, overwhelmed the regulatory process and led to the extraordinary decisions found in the final HWC rule.

Before proceeding further, however, we would particularly like to thank you, Mr. Chairman, along with Senators Hutchison, Graham, and Wyden for taking a particular interest in the oversight of the HWC MACT rule.

General Background

It is important to understand the nature of energy recovery in cement kilns and the environmental benefits that accrue. Under its RCRA Land Disposal Restriction rules EPA has mandated that certain categories of wastes must be burned---either in industrial furnaces (such as cement kilns), industrial boilers, or incinerators. EPA has also ruled that burning wastes in these types of combustion units is Best Demonstrated Available Technology (BDAT) for reducing or eliminating the hazards associated with those wastes. Cement kilns that recover energy from hazardous waste use these regulated materials as fuel---a one-for-one substitute for coal. More simply, kilns that recover energy from wastes are taking materials that EPA has said must be burned and converting them to productive use as a fuel in the cement manufacturing process. This technology yields many benefits:

-- The nation's consumption of fossil fuel is reduced since less coal is burned; thus we're conserving our energy resources.

-- Air pollution is significantly decreased because cement kilos replace fossil fuel with waste materials that EPA says must be burned. If cement kilns didn't or couldn't recover energy from these wastes, they would simply have to be burned elsewhere and the kilns would burn coal instead.

-- Recovering energy from wastes in cement kilns reduces the amount of total combustion. That lowers emissions of carbon dioxide (C02) and thus lowers emissions of greenhouse gases. Because of their chemical make-up, the waste materials burned in cement kilns also generate far lower emissions of sulfur oxides and nitrogen oxides (SOx and NOx).

The waste materials are put to productive use manufacturing Portland cement, the key ingredient in concrete, which is a critical construction material and absolutely essential to building and repairing our nation's infrastructure.

Air pollutants from cement kilns that recover energy from hazardous waste have been fully regulated since 1991. The members of CKRC recognize and accept that managing hazardous waste brings with it an obligation to society and that the public is well-served by our industry's excellent track record of compliance with comprehensive regulations designed to protect health and the environment.

Waste-burning cement kilns are subject to USEPA's 1991 Boiler and Industrial Furnace (BIF) Rule pursuant to the Resource Conservation and Recovery Act (RCRA). The BIF rules govern all aspects of processing, transporting, storing, and burning hazardous waste- derived fuels, and include stringent standards governing emissions of hazardous air pollutants. Upon promulgation in 1991, EPA lauded the BIF rule as fully protective of human health and the environment. In early 1993, EPA vigorously argued before the D.C. Circuit Court of Appeals that the BIF rules are fully protective. Since that time, there has been a massive amount testing of cement kiln emissions and extensive analysis of the risks associated with those emissions. Our industry has spent over $180 million complying with the BIF rule. We also have invested over $25 million on scientific, EPA- approved emissions testing and conducted at least 10 comprehensive risk assessments costing over $9 million. In addition, EPA and several state environmental agencies have conducted their own risk assessments. In every case, the emissions from cement kilns (including all those substances regulated as hazardous air pollutants (HAPs) by the HWC MACT rule) have been shown to be in compliance with the BIF rules and to pose no unacceptable risk to the surrounding communities. USEPA has possessed all of this data and information for several years.

Just two weeks ago, on September 30, 1999, our industry became subject to yet more EPA regulations when the Agency published the Hazardous Waste Combustor (HWC) Maximum Achievable Control Technology (MACT) Rule pursuant to Section 1 12 of the Clean Air Act (CAA). CKRC was deeply involved in monitoring this six-year rulemaking and we provided extensive data and other technical information to EPA to assist the Agency in its regulatory development process.

History of HWC MACT Rulemaking

As you are aware, before EPA issued any MACT rules, the Agency prepared a response to the Congressional directives of Section 1 1 2(e) of the Clean Air Act by developing its Source Category Ranking System (SCRS) to evaluate the comparative risks posed by facilities. (58 Fed. Reg., 63941, December 3, 1993) Congress had instructed that "The Administrator should regulate first those categories or subcategories that he determines, based on the listed factors, present the greatest threat to public health." (H.R. Rep. No. 101-490, at 330 (1990) In its December 1993 schedule for promulgation of MACT rules based on its SCRS, EPA deferred regulating HWCs until November 15, 1997 or later. (58 Fed. Reg. at 63952-53) In contrast, EPA identified 45 other source categories as higher-risk than HWCs and scheduled them for MACT standard issuance by 1994.

EPA has thus concluded that HWCs, including cement kilns, are relatively low-risk sources of HAP emissions. That's not surprising since, as explained above, HAP emissions from cement kilns were already regulated under fully protective comprehensive RCRA standards. Despite this fact, the recently promulgated MACT standards for HWCs are unnecessarily stringent, very complex, and overly burdensome. The HWC MACT rule is about five times longer than other MACT rules. And the HWC MACT rule holds the record for the highest cost EPA has ever justified to meet a MACT standard. The semi-volatile metals emission standard for cement kilns has a cost effectiveness of $500,000 per metric ton of pollutants removed---almost 60 times higher than the average acceptable cost effectiveness in all previous MACT rules!

These extreme outcomes beg the question "Why did EPA do this?" It's a long story that will be fleshed-out below; but the short answer is that the Agency has been fixated on the competitive features of the thermal treatment market. In fact, in statements to the press in 1996, the Administrator explained that the HWC MACT rule would be designed to "level the playing field for hazardous waste incinerators." She also vowed to stop "allowing the competing cement kilns to undercut the commercial incinerators" in pricing. (See attached Appendix H. p.34 of CKRC's comments on the proposed HWC MACT rule, August 19, 1996.)

There obviously exists no statutory authority of any kind for EPA to interfere in waste management markets. And Section 112 of the CAA clearly instructs EPA to accommodate the technological differences among various source categories in setting MACT standards, even to the point of subcategorizing within a single source category. Nonetheless, in the HWC MACT rule, EPA was determined to carry out the Administrator's goals even if it had to override the clear directives of Section 112. The best example of this is that, after EPA established an SVM MACT floor level for incinerators of 240 micrograms/dscm, the Agency went to extreme measures to "justify" setting an identical, but relatively much more stringent 240 microgram/dscm SVM beyond the MA~CT floor standard for cement kilns. Voila! The HWC rule now contains uniform numerical standards for very different technologies and EPA has created the so- called "level playing field" the Administrator called for in 1996. As testament to the 'success' of the Agency's 'creation,' in a July 1999 briefing for Senate staff, EPA noted that the HWC MACT rule would leave cement kilns ".. .worse off due to the decline in market share and revenues, while commercial incinerators are projected to be better off due to the increase in prices, market share, and overall revenues." (See attached Overview of Hazardous Waste Combustor NESHAP Rule for Congressional Committees, July 1999) In the process, the intent of Congress was undermined.

As you know, Congress, including members of this Subcommittee, became aware in early 1998 of some of EPA's novel interpretations of Section 112 in the HWC rule and began conducting aggressive oversight over EPA's rulemaking process. Members of this Subcommittee were particularly concerned about the fate of energy recovery in cement kilns and the possibility that "if the [HWC MACT] rule is not sufficiently flexible, it may discourage this form of recycling." These Senators also asked EPA "to demonstrate that the proposed [cement kiln semi-volatile metal] MACT standard actually reduces risk over and above a MACT standard set at the floor." (See attached April 15, 1999 letter to USEPA from Senators Graham and Hutchison.) In all, members of the Senate EPW Committee sent four detailed letters to EPA over an eleven-month period and, in too many instances, the Agency either declined to respond or failed to respond substantively to the oversight inquiries (See attached letters from U.S. Senate to USEPA and EPA responses).

The many major flaws in the HWC MACT rule may prove instructive as this Subcommittee considers reauthorization of the CAA. CKRC believes its experience with the HWC MACT rule is unique and we hope this testimony may prove helpful in identifying provisions of the statute (particularly Section 1 12) that should be considered for amendment.

Specific Issues

The HWC MACT rule suffers from several defects that have their roots in three main areas: risk reduction/economic impact, scientific/technological basis, and jurisdiction. Also, the rule's implementation requirements are unduly complex and burdensome. Finally, the rule has no provisions designed to accommodate, encourage, or even recognize the environmentally beneficial recovery of energy from waste materials in existing industrial processes. In fact, it actually penalizes energy recovery technologies and seems designed to reduce the capacity of cement kilns to recover energy from hazardous wastes.

A. Risk Reduction/Economic Impact

Section 112 of the CAA authorizes EPA to set emissions standards that "shall not be less stringent, and may be more stringent than...the average emission limitation achieved by the best performing 12 percent of existing sources. .." Such "more stringent" standards are called 'Beyond the MACT Floor Standards' or, simply 'Beyond the Floor' (BTF) standards. However, unlike MACT floor standards, BTF standards are subject to certain restrictions provided in Section 112(d)(2) wherein the Administrator must take into consideration "the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements..." In establishing MACT floor standards, Congress did not obligate EPA to consider costs and other factors. However, EPA is obligated to justify additional stringency beyond the MACT floor level. EPA has interpreted the provisions of Section 1 12 noted above as requiring that the Agency make a finding that a BTF standard is "cost effective". In past MACT rulemakings, EPA has been very sparing in promulgating beyond-the-floor standards. In the HWC MACT rule, on the other hand, EPA has published several BTF standards, some with cost effectiveness levels that exceed what has previously passed as cost effective by a factor of almost 60!

Because it is a clear example of what we believe is an abuse of the intent of the CAA, CKRC has been particularly concerned about the BTF standard EPA set for emissions of semi-volatile metals (SVM) from cement kilns. (In hazardous waste combustors, due to the nature of the waste materials burned, a majority of SVM emissions are lead and the balance is cadmium.) In the final rule, EPA set a MACT floor SVM standard of 650 micrograms/dry standard cubic meter (dscm) for cement kilns. but decided to promulgate a much more stringent BTF standard of 240 micrograms/dscm. EPA's decision to set a BTF SVM standard for cement kilns was the subject of significant oversight by members of the Senate EPW committee. (See attached letters.) In the final analysis, EPA was completely unmoved by this committee's oversight and its frequently expressed concerns about the flawed analytical process, the lack of justification, and the possible negative consequences on energy recovery.

As noted above, in its past rulemakings, EPA has justified the establishment of BTF standards by finding them to be cost effective. Logic dictates that, implicit in such a finding, there should be some measurable environmental or public health benefit gained relative to the incremental costs of complying with a significantly more stringent standard. Historically, EPA has calculated the cost effectiveness of BTF standards in terms of dollars per ton of pollutant removed. In its previous decisions to promulgate BTF MACT standards, EPA's Of flee of Air and Radiation (OAR) generally has found acceptable cost effectiveness levels in the range of roughly $5,000 - $14,000 per megagram (metric ton) of pollutant removed, with an average level of about $8,500 per metric ton. (See attached report, A Review of Economic Factors to use in PSD BACT Economic Analysis, Iowa Department of Natural Resources, p. 11, July 1998.) Cost effectiveness figures above that level generally have been found by OAR to be unacceptable. But the HWC MACT rule was not written by OAR, it was written by the Office of Solid Waste and Emergency Response (OSWER). For the BTF SVM standard for cement kilns in the HWC MACT rule, OSWER found acceptable a cost effectiveness of $500,000 per metric ton! That's almost 60 times more expensive than the average acceptable cost effectiveness levels in previous MACT rules!

In the final rule, EPA acknowledges "the relatively poor cost effectiveness of this standard" (64 Fed. Reg., 52882, September 30, 1999). The folly of EPA's acceptance of such an exorbitant economic impact on the cement industry becomes even more egregious in light of the complete lack of risk reduction gained by setting the more stringent BTF SVM standard. Although EPA frequently told stakeholders in this rulemaking that its decisions were being driven by concerns about children's health, in a June 7, 1999 letter to Senator Hutchison, EPA conceded that "we do not project a reduction in the numbers of children with blood lead levels the [sic] exceed the Centers of Disease Control and Prevention intervention level." (See attached letter from USEPA to Senator Hutchison)

Nonetheless, in the final HWC MACT rule EPA continues to claim that the beyond-the- floor SVM standard for cement kilns "supports our Children's Health Initiative." (64 Fed. Reg., 52882, September 30, 1999) In the final rule, EPA states that its "characterization of risks from lead focuses on the reductions in blood levels themselves and EPA's goal of reducing blood lead levels in children to below 10 micrograms per deciliter." (64 Fed. Reg., 53003, September 30, 1999) But, later, EPA describes the results of its analysis of the "excess incidence of elevated blood lead" attributable to HWCs and observes that "a small reduction (0.4 cases per year) is attributable to cement kilns." (64 Fed. Reg., 53008, September 30, 1999)

So, while EPA claims to have made its decision to go beyond-the-floor to improve the health of children, the Agency ultimately reveals that the benefit to children's health produced by the cement kiln BTF SVM standard is a decrease in the incidence of elevated blood lead levels of 0.4 cases per year. That's 0.4 cases out of the entire US population of over 250 million people! Surely all of us who support investments in the health needs of children should be dismayed by EPA's investment of six years in a regulation that will cost Americans millions of dollars to produce such a paltry result. In its comments on the HWC MACT rule, CKRC submitted a report to EPA showing that the literature contains abundant EPA and Centers for Disease Control and Prevention data that proves, by a wide margin, the most significant source of elevated blood levels in children is caused by exposure to lead-based paints in older housing. The dollars of additional cost that EPA has imposed on our industry with its BTF SVM standard would yield much greater public health benefits if applied to remediation of those lead-based coatings.

Combining OSWER's outrageous cost effectiveness findings with the results of its risk analysis reveals that the 240 microgram/dscm SVM standard for cement kilns is the single most expensive beyond-the-floor MACT standard ever promulgated by EPA. And the societal benefits gained are an incredibly miniscule and practically unmeasurable decrease in the incidence of elevated blood lead levels. By contrast, it's interesting to note that in 1995 OAR published a final MACT rule for secondary lead smelters. In that rule, OAR promulgated a MACT floor emission standard for lead of 2000 micrograms/dscm, almost 10 times higher than the cement kiln SVM standard. And, because secondary lead smelters also are subject to regulation under RCRA, EPA examined the risk factors and specifically concluded in the secondary lead smelter rule that the standard of 2000 micrograms/dscm was fully protective of human health and the environment and, therefore, the Agency's RCRA obligations were satisfied.

These are examples of the inconsistent and extreme results that can ensue when EPA is allowed to arbitrarily mix the authorities of different statutes and employ unauthorized policies to arrive at decisions that contravene Congressional intent. Clearly, the abuses found in the HWC MACT rule demonstrate that any reauthorization of the Clean Air Act ought to include a significant revision of Section 1 12, especially as it relates to beyond- the-floor MACT standards. Absent specific guidance from Congress regarding acceptable economic impacts and risk reduction targets, and without tight limitations on the Agency's rulemaking procedures, the spirit and intent of the Clean Air Act can and will be undermined.

B. Science and Technology

As cited above, Section 1 12 of the Clean Air Act specifies that emissions standards for existing sources ". . . shall not be less stringent, and may be more stringent than---the average emission limitation achieved by the best performing 12 percent of existing sources..." Emissions standards that are not "less stringent" are generally referred to as "MACT Floor" standards. "More stringent" standards are called "Beyond-the-Floor" standards. In accordance with the statute, both types of emissions standards are technology-based standards. This is as opposed to risk-based standards that EPA is authorized to promulgate under other statutes, such as RCRA.

In its previous MACT rulemakings for industrial source categories, EPA has developed MACT floor standards by assessing the performance of the various control technologies employed to control emissions of hazardous air pollutants (HAPs). Typically, this involves assembling an inventory of the technologies in existence followed by analysis of a body of data that describes the performance of those technologies. As specified by the CAA, EPA is supposed to use the analysis to determine "the average emission limitation achieved by the best performing 12 percent of existing sources." For example, EPA evaluates the performance of a control technology designed to capture emissions of a particular HAP by analyzing data that describes the emissions capture rate of specific air pollution control devices (APCDs) or other technologies. By following what is supposed to be a very prescriptive process, EPA then determines which APCDs represent the "best performing 12 percent" and establishes the MACT floor emissions standard at that level of performance. Clearly, an important part of Congress's intent in the CAA and in Section 1 12, is to create pressure on industry to upgrade its air pollution control systems and processes and, thereby, advance the scientific development of more effective technologies to reduce air pollution. Stated simply, Congress intended the CAA to be a science-based, technology-forcing statute.

In the HWC MACT rule, EPA claims to have followed the prescribed procedure for establishing MACT floor levels for the various HAPs at issue in this rulemaking (dioxins/furans, mercury, metals, chlorine and hydrogen chloride). But, in many cases, OSWER went beyond the established procedure previously developed and implemented by OAR and employed unprecedented and highly questionable techniques to set the MACT floor levels for HWCs. For example, to set emissions standards for metals, EPA identified what it refers to as "feedrate reduction" of metals as a 'control technology' that is uniquely available to hazardous waste combustors. The Agency evaluated this "control technology" by lumping all units in each subcategory together, hand-picking the individual combustion units that just happened to have the lowest metals feedrates, and then anointing them as "best performers." Basically, EPA 'discovered' that the way to control emissions from HWCs is to cause them to reduce the amount of waste they can burn---even though HWC's that burn hazardous waste are playing a critical role in managing that waste! That type of 'emissions control' doesn't come close to advancing the scientific development of more effective pollution control technologies and has nothing whatsoever to do with the "best performing" technologies.

Some additional context is needed to fully appreciate the implication of this decision by EPA. In several of its RCRA rules, EPA has acknowledged that, other than combustion, there are no known technologies to separate metals from certain combustible hazardous waste streams. In fact, EPA mandates that these types of wastes must be combusted in regulated HWCs. One way or another, these materials must be burned in a regulated unit such as an incinerator, a cement kiln, or a boiler. (Recall that, in its RCRA rules, EPA has specified combustion as the Best Demonstrated Availability Technology for these waste streams, in full recognition of the fact that they usually contain metals.)

So this "control technology" (i.e., feedrate reduction) contrived by OSWER amounts to little more than a device for rewarding those facilities that burn less hazardous waste and penalizing those that (for whatever reason) burn more waste. Thus, the practical effect of implementing feedrate reduction as a control technology is to force facilities to burn less waste---in the case of cement kilns, to reduce their energy recovery capacity and burn more coal. If fully extended to a manufacturing process such as an oil refinery, this type of logic implies that the "best performing" oil refinery would be the one that feeds no crude oil to the unit. EPA's approach would mean that the best performing refineries are the ones out of business. There simply is no legitimate rationale in the Clean Air Act for this type of approach to setting MACT standards and, in fact, the approach used by OSWER in the HWC MACT rule is wholly without precedent in other CAA MACT rulemakings.

The real travesty here is that, by defining feedrate reduction as a technology, EPA has shredded Congressional intent and made a mockery of bona fide air pollution control technologies. In the HWC rule, the Agency has ignored the intent of the CAA to promote scientific development of air pollution control technologies by declaring that a legitimate and proper solution to the problem of controlling air emissions is as simple as just feeding less material into a process. Because if you don't put it in, it won't come out. What a discovery! What a great leap forward! Played out to its full extent, EPA's logic in the HWC MACT rule would mean that shutting down industry could best solve America's air pollution problems.

In the HWC MACT rule, EPA cites the provisions of Section 112 (d)(2)(A) that allow "substitution of materials or other modifications" as its authority for using feedrate reduction as a control technology. EPA argues that cement kilns can comply with the more stringent BTF SVM standard simply by using less hazardous waste for energy recovery and "substituting" it with coal---thus increasing both the total amount of combustion and overall emissions of air pollutants. OSWER claims this is consistent with the spirit and intent of the CAA. But the Agency never explains why feedrate reduction has never been used by OAR in any other CAA rule.

CKRC would like to suggest that this Subcommittee and, eventually, Congress take steps in the reauthorization of the CAA to require that EPA implement the Act using only legitimate scientific rationales. EPA should be prevented from conjuring-up unprecedented techniques to justify emissions standards that are more stringent than could ever be derived by conventional data analysis as applied to bona fide air pollution control technologies. In particular, Congress should ensure that reducing inputs to processes can never be claimed as a "control technology," especially in the case of energy recovery applications that result in a decrease in air pollution. Finally, Congress should require that EPA not attempt to abuse its CAA authority to try to manipulate competitive markets.

C. Jurisdiction

The EPA of lice traditionally charged with implementing the CAA is the Of floe of Air and Radiation (OAR). Aside from the Phase I and Phase II MACT rules affecting combustion of hazardous waste, all other MACT rulemakings promulgated by EPA (including several relating to other types of waste combustion) have been or are being developed by OAR. The HWC MACT rule (in its various phases) is the only one that has been or will be developed by OSWER.

As we have seen, this jurisdictional anomaly proved instrumental in creating a mechanism for EPA to circumvent CAA authority and the intent of Congress and, by invoking supposed "RCRA concerns," enabled the Agency to promote its unauthorized policy objectives relating to the hazardous waste combustion market. CKRC is convinced that the HWC MACT rule would not suffer from its unusual defects had the regulatory development process been in control of the more experienced Of lice of Air and Radiation. It has been common knowledge that this rulemaking produced a huge donnybrook between OAR and OSWER and that the arguments were, in part, related to OSWER's disregard for precedent established by OAR in implementing the CAA. Historically, in its development of other MACT rules, OAR has at the very least exercised some restraint in its interpretation of the statute and achieved a degree of regulatory consistency across its CAA rulemakings. Surely we know of no cases where OAR attempted to use the CAA to affect the competitive structure of markets. Unfortunately, the HWC MACT rule became a vehicle for OSWER to inject the Agency's biases into the thermal treatment market and, apparently, the Office felt unconstrained by either the CAA or Senate oversight in pursuing that objective.

In its reauthorization of the CAA, this subcommittee should consider adding provisions that will prevent this kind of abuse in EPA's implementation of the Act. Congressional intent would be better served by the creation of some type of barrier to preclude EPA from claiming "joint statutory authority" to develop CAA regulations, or to use CAA regulations as an outlet for unauthorized policy initiatives, particularly those that run counter to the intent of the Act.

Implementation and Compliance

Ultimately, the efficacy of any regulatory action is tied to its implementation. Successful implementation is the means by which compliance with a rule is achieved and maintained and by which environmental gains are realized.

The HWC MACT rule, as noted above, is extraordinarily complex, almost punitively so. Its complexity is not linked to positive environmental or public health outcomes; but only encumbers the implementation of the rule. It is regulatory burden that has been laid-on for its own sake. Early in the HWC rulemaking, in 1996, EPA conducted several public meetings during which it touted the extent to which the rule would be designed to simplify and consolidate many requirements of the existing RCRA rules that governed hazardous waste combustors. EPA claimed that the discomfort and expense of the stringent standards the Agency intended to develop would be offset by more efficient, less redundant, and simpler implementation requirements. EPA did not fulfill its commitment. What we got instead are much more stringent standards and much more complicated implementation requirements.

In its deliberations about CAA reauthorization, Congress should take into consideration that the current statute does not adequately compel EPA to use common sense in its rulemakings. EPA apparently needs Congressional guidance to force the Agency to more substantively bind itself to issuing common sense, uncomplicated implementation procedures and requirements. Congress should impress upon EPA the need to implement CAA rules in a way that encourages and even hastens compliance among the regulated community. Congress should let EPA know that successful implementation, pursued by cooperative and interactive means, would produce a higher rate of compliance at less burden and lower cost. Congress should charge EPA with the obligation to rely much more on assistance than on enforcement to ensure compliance and give the Agency the tools necessary to carry out that task.

Energy Recovery

Since the mid-1980's, the US cement industry has productively used millions of tons of hazardous waste as fuel in cement kilns. Congress has made clear in other statutes (e.g., RCRA) that it is environmentally preferable to recycle the value of waste materials than to destroy or dispose of them. The benefits provided by recovering energy from wastes in existing manufacturing processes that were enumerated at the beginning of this testimony are real. Fossil fuels are conserved. Air pollution is significantly decreased. And waste is converted to a productive asset. It is clearly a win-win proposition.

But the commercial hazardous waste incinerator operators didn't see it that way. Until the early 1990's they had enjoyed a near-monopoly in the hazardous waste combustion market. Their reaction to what they perceived as emerging competition from cement kilns was to aggressively lobby EPA to increase the regulatory burden on their cement industry competitors, thus increasing their costs and, as a hoped-for byproduct, reducing their presence in the hazardous waste thermal treatment market. Their mantra was "level the playing field," despite the well-known fact that cement kilns were newly subject to the BIF rules, which were far more comprehensive than the RCRA Subpart O standards for incinerators. The incinerator companies, primarily via their trade association, the Environmental Technology Council (ETC), finally began to see their lobbying efforts gain traction in the early days of the current Administration. After several closed-door meetings with incinerator operators early in her tenure, Administrator Browner seized upon ETC's rhetoric and initiated her "Hazardous Waste Combustion Strategy" in May 1993. That immediately resulted in EPA abandoning its vigorous defense of the RCRA BIF rules in the D.C. Circuit and produced an out-of-court settlement with ETC that, among other things, committed the Agency to issue tighter regulations on cement kilns that recover energy from hazardous waste. (See CKRC Comments on the Proposed HWC MACT Rule, Appendix H. August 19, 1996)

In its zeal to regulate cement kilns with much tighter emissions standards in the HWC MACT rule, EPA acted as though it was unconstrained by the CAA from making decisions that were specifically aimed at reducing the capacity cement kilns to recover energy from hazardous wastes. As cited above, the Administrator set EPA upon a course to use the HWC rule to stop "allowing competing cement kilns to undercut the commercial incinerators." And that's just what the Agency did. It established exotically expensive beyond-the-floor standards and then specified that cement kilns could achieve compliance with those standards by "feedrate reduction," i.e., by burning less waste for energy recovery. (Because EPA mandates that the waste must be burned, if cement kilns burn less waste, incinerators will burn more waste.) In its formal comments on the proposed rule, CKRC aggressively challenged EPA's decision and, in oversight communications, members of this Subcommittee also emphatically objected to the Agency's approach. In response, EPA claimed on the one hand that it was not obligated to consider the HWC MACT rule's impact on energy recovery capacity; and, on the other hand, that it rejected our industry's data and information as incorrect (i.e., not in conformance with EPA's analysis).

It ought not to be so easy for EPA to completely disregard the important environmental ramifications of recovering energy from millions of tons of waste. We believe the CAA should be amended to specifically support and encourage energy recovery and other recycling activities that have been shown to directly benefit air quality and reduce greenhouse gas emissions. EPA should be barred from taking any regulatory action under the Clean Air Act that impairs, reduces, or otherwise adversely affects energy recovery technologies that have demonstrable environmental (and economic) benefits. Conversely, the CAA should require that EPA take affirmative steps to promote and encourage such technologies. CKRC hopes this Subcommittee will be inclined to fill this void in the Clean Air Act.

Conclusion

The Subcommittee today has a rare opportunity to begin afresh its analysis of the Clean Air Act as it contemplates reauthorization. Our recent experience with the MACT program dictates that Congress should be vigilant of several points in dealing with this section of the Act. First, Congress should make clear the findings necessary to go beyond the MACT floor in setting emissions standards. While CKRC believes the law already adequately requires EPA to make cost and other findings to justify standards more stringent than the floor, Congress should take the opportunity of reauthorization to make the importance of cost and risk considerations even clearer to the Agency. Second, Congress must make clear that reducing feed to a process is not a control technology or a gauge of the best-performing sources, that it does not amount to an application of sound science, and that it does not promote technological advancement in accordance with the intent of the Clean Air Act. Third, Congress should take steps to guard against the MACT program being used as a thinly veiled attempt to reallocate market share or make production decisions for the regulated community. Fourth, Congress should remind the Agency that neither the regulated community nor the environment are served if rules are implemented in inflexible ways. Rather, common sense in implementation makes compliance more likely and less expensive, and better protects human health and the environment. And finally, Congress should ensure that the CAA accommodates and encourages proven energy recovery technologies and prohibits EPA from actions harmful to the perpetuation or expansion of those technologies.

Thank you again for this opportunity to testify before the Subcommittee. I look forward to answering any questions you may have.