Yesterday, the House Committee on Science, Space and Technology, Subcommittee on the Environment, held a hearing to examine the achievability of potential new ozone standards. The EPA, which substantially lowered the Ozone Standard in 2008 and then unsuccessfully tried again in 2010, is widely expected to propose lowering the Ozone Standard even further at some point this year. As witnesses from the scientific, legal, academic and state regulatory community testified today, achieving a lower standard in many parts of the country will be nearly impossible – if not completely impossible – because of naturally occurring ozone or ozone that is beyond the control of any U.S. regulatory agency (known as “background”).

Ozone can travel several thousand miles and concentration levels are greatly impacted by, amongst other things, topography and weather. However, after EPA sets an air quality standard, like the Ozone Standard, states have limited tools with which to achieve these federal mandates. So manufacturers end up bearing the brunt of the costs, even in areas where there are very few industries. In fact, several national parks, with no industrial activity at all, have been found to be in “nonattainment”.

The situation will be particularly vexing in the Western United States, where ozone attributable to pollution from Mexico and several Asian and European countries contributes significantly to higher ozone measurements. Many of these regions are rural areas of the country with few industries, yet according to EPA would be classified as “nonattainment” and left with little hope of future economic development. As EPA considers lowering the Ozone Standard this year, potentially bringing nearly the entire country into nonattainment, serious consideration should be given to the impact background ozone levels have on nonattainment determinations and the impacts a lower ozone standard could have on manufacturers across the country.

Greg Bertelsen is director of energy and resources policy, National Association of Manufacturers.

Yesterday Senator McConnell and Rand introduced the “Coal Jobs Protection Act” in response to a number of regulatory actions taken by the Environmental Protection Agency (EPA). Rep. Capito introduced a companion bill in the House this afternoon as well. The focus of the McConnell bill is jobs and to slow the EPA’s efforts to regulate coal usage out of our energy mix.

The coal industry in Kentucky directly employs 14,000 workers and accounts for an additional 52,000 workers indirectly.  Over the last several years both coal production and employment have dropped significantly in the Bluegrass State. Coal production is down almost 28 percent and over 4,000 coal miners have lost their jobs.

Too often the EPA has dragged its feet on approving various water permits ranging for 402 to 404 by delaying action on these permits that are needed to begin work on coal related projects. EPA’s own web site they list almost 40 402 (national pollutant discharge elimination into navigable waters) permits that have been waiting for action since 2008. This legislation would require EPA to provide 402 applicants a yes or no within 270 days of the application.

It would also require EPA to begin the authorizations process on 404 permits (fill and dredge permits) within 90 days of receiving the application. EPA’s slow walking these permits costs communities, businesses and workers thousands of jobs and millions of dollars in economic benefit in addition to millions of dollars in lost coal severance money that would have gone to the state and local communities.

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On Monday, 33 Senators wrote a letter to the Chairwoman of the Council on Environmental Quality (CEQ) expressing concern about a dramatic expansion of the National Environmental Policy Act (NEPA). A federal statute enacted in 1970, NEPA was developed to require federal agencies to consider the environmental impacts of their actions, such as issuing federal permits for land development. NEPA, as it is applied today, is a red tape, bureaucratic mess that slows economic growth by holding expansion projects up at the permitting stage, far beyond what is necessary to perform a reasonable environmental review.

As the Senators discuss in their letter, there have been rumors floating around Washington that the Administration intends to finalize updated NEPA guidance, instructing all federal agencies to expand their environmental reviews to consider the impacts of greenhouse gas (GHG) emissions. This is a very bad idea. On average, it already takes 3.5 years to navigate through the NEPA environmental review process. As we have seen for a select group of projects where agencies have waded into GHG emissions – think large, politically-charged, trans-border, infrastructure projects – trying to account for their GHG impacts adds years to the permitting process.

If we are serious about growing the economy and creating jobs, we cannot afford to add another layer of ambiguity, uncertainty and red tape to our already overly cumbersome federal environmental review process. Frankly speaking, GHGs are too complicated for NEPA. Nearly every economic activity, from building a factory to constructing a highway to placing a solar farm in the dessert, has layers upon layers of direct and indirect GHG impacts associated with it: Raw materials must be pulled from the ground and often refined. Trucks, trains, planes and ships must deliver those materials to a factory.

A factory must assemble and deliver finished goods to a project location or warehouse. The goods are then installed or used for their intended purpose. All of these activities emit GHGs. How far back and how far forward from the project in question are we to quantify emissions? And how are agencies to measure the climate impacts of discrete projects emitting GHGs that collect in the earth’s atmosphere indiscriminate of location? The draft guidance suggests using, “reasonable spatial and temporal boundaries.” Crystal clear, no? Legal careers could be made, houses built, retirements funded on arguing what is included within the “reasonable spatial and temporal boundary.”

The politics of climate change aside, this is getting out of hand. Rational thought and a reasonable review of the original intention of the statute lead to a clear conclusion: NEPA was not intended to address GHG emissions.

Greg Bertelsen is director of energy and resources policy, National Association of Manufacturers.

In today’s Politico former Senator Blanche Lincoln penned and op-ed on the importance of energy exports and the need for government to help industry, hurt it.

In the piece Sen. Lincoln discusses the importance of the pending permits for coal export terminals in the Pacific Northwest. Exports are essential to our competitiveness and it is important that these projects be allowed to move forward without onerous delays such as a one-size fits all environmental review.

Here is an excerpt from Politico:

This expansion, supported by private investment, would allow for the increased export of bulk commodities like coal, agricultural products and other materials. If allowed to move forward, such expansion would lead to more jobs and tax revenue for the entire region — and the nation. But it, and countless other infrastructure projects, could be permanently stalled by an onerous review that would attempt to analyze the cumulative regional environmental impact of these facilities and for every use of everything that is shipped from them: a virtually impossible task that, if followed to its logical end, could result in findings conceivably so inaccurate that they would be utterly useless. This effect, on top of possible reductions in resources to agencies, could produce a real roadblock at a time when we need all hands on deck to help us grow our economy.

Sen. Lincoln hits the nail on the head when she says “we need all hands on deck to help us grow our economy.” Additional reviews and red tape will bog down projects like the coal export terminals and set us further behind our global competitors while we lose out on valuable export opportunities.

On Wednesday, March 13, the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on H.R. 982, the Furthering Asbestos Claim Transparency (FACT) Act of 2013. Introduced by Rep. Blake Farenthold (R-TX) with Rep. Jim Matheson (D-UT), the FACT Act is bipartisan legislation that would combat fraud and abuse of the asbestos trust system.

The NAM supports H.R. 982 and appreciates the leadership of Reps. Farenthold and Matheson on this important issue. The Subcommittee’s hearing helps expose areas of fraud that plague the asbestos trust system. Without proper oversight and checks on the system, increasing fraud and abuse will harm the truly needy and diminish asbestos trust fund resources.

The FACT Act would require trusts to quarterly disclose information on their claim payments and to cooperate in requests for information on claims and, while protecting a claimant’s sensitive personal information, would deter fraud and abuse without impacting legitimate claims. Opportunistic individuals currently are able to file claims for the same claimant with numerous trusts using different and conflicting theories of exposure, seeking multiple payouts. The FACT Act is a commonsense reform of the system that would inject transparency, creating a disincentive for fraudulent activity and protecting the individuals for whom the trusts were established. We urge Congress to pass this important legislation.

Erik Glavich is director of legal and regulatory policy, National Association of Manufacturers.

The old saying is April showers bring May flowers, but the rain has already started here in Washington when it comes to healthcare regulations being pushed out in 2013. On Friday, the Department of Health and Human Services announced it will release 700 pages of regulations in the next two weeks to implement the Affordable Care Act. I sure hope the healthcare is more affordable than what it costs to print the regulations stemming from the new law, but I guess when a law is nearly 3,000 pages and says “The Secretary shall…” over 1,000 times we should expect that.

The latest reg-dump on Friday covers some important ground on premium-stabilization provisions of the law and they will provide a little more clarity on how much healthcare costs will increase ($65 per policy), but it’s still only part of the overall picture. There are less than seven months before the Affordable Care Act needs to stand on its own and start running. By most estimates, there are at least 10-12 significant rules that have to be worked out before October. This raises an interesting question, what needs to be done? I refer to it as the Regulatory Triple-Lindy, and it has a high degree of difficulty.

In the next 211 days, entirely new data collections and processing systems need to be up and online in order to determine who is eligible for what program and when. Insurers need to know whether their products will pass new federal rules, what their prices are going to be, make contracts with providers and decide which markets to enter sometime before October in order to give employers time to do what they need to do. Small employers need to know what their coverage options cost, what kind of choices they have available to them and how the SHOP exchanges will work before October 1. The public needs to be educated about their options, understand those new products, compare plan options, and choose a plan before January 1 or pay a fine.  All of these things need to fit together seamlessly in order for this to work.

The NAM Human Resources Policy staff will be going through the 700 pages as fast as we can. The forecast for the next 211 days, however, is cloudy, with patchy fog and a 100 percent chance of precipitation – icy conditions are possible in shaded areas.

Yesterday, NAM Executive Committee Member Drew Greenblatt, president and owner of Marlin Steel Wire Products in Baltimore, testified before the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law. The focus of the hearing was on the impact of regulations. In his testimony Mr. Greenblatt examined the negative impact of regulations on jobs and the global competitiveness of U.S. businesses.

Manufacturers are facing a growing number of burdensome regulations from various government agencies making it harder to compete today’s global marketplace. Mr. Greenblatt stated:

“To compete on a global stage, manufacturing in the United States needs policies that enable companies to thrive and create jobs. Growing manufacturing jobs will strengthen the U.S. middle class and continue to fuel America’s economic recovery.”

We need to find ways to reduce the cumulative burden of regulations on manufacturers so they can focus on getting Americans back to work.

Today the National Association of Manufacturers is part of a group that filed a reply brief with the U.S. Court of Appeals for the D.C. Circuit in the Mississippi V. EPA case on the 2008 ozone limits. This brief was filed in response to the briefs filed by the EPA and other environmental groups who have intervened in the case.

This case dates back to the EPA’s reconsidered ozone standard from 2008 which lowered the National Ambient Air Quality Standards to .075 ppm. The brief filed today reiterates the NAM’s position that the EPA did not have sufficient evidence in the record to justify its conclusion that the public health risk from ozone was any different in 2008 than it was in 1997 when the last ozone standard was set.

Also the brief argues that the EPA failed to justify why the 1997 standard was no longer “requisite,” as required by the statute, to protect public health with an adequate margin of safety. The agency also failed to rely on air quality criteria that accurately reflect the latest scientific knowledge, and set secondary standards based on the defective primary standard.

The EPA’s ozone standard threatens the competitiveness of manufacturers and businesses of all sizes throughout the country. In September of last year President Obama decided to delay another reconsideration to lower the standard even further. This would have been detrimental to our economy and would have driven job growth to a halt.

The ozone reconsideration is just another example EPA regulations causing uncertainty for manufacturers. We need certainty from Washington, not more of the same costly regulations that are hurting manufacturers’ ability to create jobs and grow.

Quentin Riegel is vice president of litigation and deputy general counsel, National Association of Manufacturers.

In 1994, Texas adopted its “Flexible Permit Program” to comply with Clean Air Act requirements for minor new sources of emissions. It submitted its plan for approval to the EPA, which is required by law to act within 18 months. Years passed without EPA action, and industry sued for an answer.  Finally, sixteen years later, EPA disapproved the Texas plan, throwing into doubt the legality of activities covered, at this point, by about 140 permits.  Every facility with a flexible permit could face fines or other enforcement action regardless of the emissions they produce.

The NAM and a variety of industry parties, as well as the State of Texas, sued.  Today, a federal appeals court agreed to throw out EPA’s disapproval of the Texas plan, finding no statutory basis for its criticisms of the plan. Instead, the court recognized what EPA did not – that the Clean Air Act sets goals and basic requirements, and gives the states broad authority to determine the methods and particular control strategies they will use to achieve them.

Basically, the court told EPA not to micromanage state implementation of the Clean Air Act.  That law makes environmental regulation a shared responsibility, and it is not appropriate for EPA to require states to adopt its own language or procedures as long as the state plans enforce the law’s requirements.

It is quite unusual for courts to overturn EPA decisions, since agencies enjoy a substantial degree of deference under the law, both on factual determinations and on how to legally interpret ambiguous statutes.  But in this case, the court found that EPA made no factual findings or cogent theory that the Texas plan would interfere with proper Clean Air Act enforcement. The agency’s preference for its own way of enforcing the requirements was not enough to justify interfering with a system that Congress established to provide for shared responsibility. (continue reading…)

Over the past week, EPA announced that it would reconsider parts of the “Utility MACT” air toxics regulation on power plants and that it needs even more time to finish it’s reconsidered “Boiler MACT” regulation to get it right. In doing so, EPA implicitly admitted that it moved too fast and underestimated the challenges present in crafting each regulation.

There is a very unsettling common thread in both the Utility MACT and Boiler MACT rules: both regulations were born from litigation, and the deadlines for issuing the regulations came from judicial settlements EPA entered into.

In both cases, EPA agreed to a schedule providing little time to review and respond to comments before entering a final rule. In both cases, the judicially-enforced consent decree EPA entered into prevented the agency from issuing a final rule that was free from errors. And in both cases, EPA now finds itself in the midst of a messy reconsideration process to correct those errors.

These are not isolated events. In fact, EPA recently entered into a consent decree for its PM2.5 National Ambient Air Quality Standards (NAAQS) that gives the agency barely 100 days to review comments, a dramatically shorter time frame than EPA has given for any new or revised PM or Ozone NAAQS since 1971. If the Agency receives 100,000 public comments on the rule—a conservative estimate—EPA staff would have to review over 1,000 comments and draft 4-5 pages of responses per day, every day, including weekends. (continue reading…)