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…)

The Environmental Protection Agency (EPA) announced this afternoon that it will reconsider some aspects of its Mercury and Air Toxics Standards (MATS) for new power plants. The Agency will also stay the new source rules for three months during the review process.

According to a press release, the EPA “will review monitoring issues related to the mercury standards for new power plants and will address other technical issues on the acid gas and particle pollution standards for these plants.”

The MATS rule is one of the most expensive regulations ever promulgated by the agency for power plants, and we hope the EPA’s reconsideration will provide some relief for companies building five new power plants in Georgia, Kansas, Texas and Utah.

We will be closely following developments over the next few months as the EPA begins the reconsideration. Hopefully the EPA is begining to see the many challeges and burdens this regulation will place on energy producers. This regulation will result in increased energy prices for manufacturers, contributing to the already unfavorable business environment that is limiting job growth.

Alicia Meads is director of energy and resources policy, National Association of Manufacturers.

The Environmental Protection Agency (EPA) continues to pile on complex  regulations that impact manufacturers. Just last month, the Agency proposed more stringent air quality standards for fine particulate matter (i.e. PM2.5 NAAQS). Business groups are already starting to speak out. At an EPA public hearing yesterday in Sacramento, CA, the California Manufacturers & Technology Association (CMTA) urged the EPA to maintain the current PM2.5 standards.

“This proposal will unnecessarily burden the economy at a time when the country and California, in particular, are struggling to overcome the recession,” stated Mike Rogge, Policy Director at the CMTA. Rogge’s testimony highlighted the serious and immediate consequences for areas that do not attain the air quality standards established by the EPA. For example, companies building new facilities or performing major modifications to certain existing facilities in, or near, a non-attainment area will be required to install the most effective emission reduction technology regardless of cost. The EPA’s actions will cause many manufacturers around the country to think twice before expanding their operations.

We encourage all manufacturers to urge the EPA to retain the existing PM2.5 standards during the comment period which ends on August 31, 2012. You can learn more about the EPA’s proposal here.

Last Friday, I testified at a House Committee on Natural Resources subcommittee hearing on the Spruce Mine in Logan County, West Virginia, and the impact the EPA’s retroactive veto of Clean Water Act permits for that project had on manufacturers.  EPA’s 2011 decision to renege on Spruce Mine’s validly-issued 2007 permit sent shock waves through a wide range of manufacturing sectors, who receive 60,000 of these permits each year and condition $220 billion worth of investment annually on issuance of these permits.

My testimony addressed the uncertainty the EPA’s after-the-fact veto could have caused for manufacturers had it not been vacated by a federal court two months ago.  I also discussed EPA’s broader water policy agenda and the concerns manufacturers have with some of EPA’s more recent Clean Water Act regulations and guidance.  A copy of my testimony can be found here.

Ross Eisenberg is vice president of energy and resources policy, National Association of Manufacturers.

NAM VP NAM Vice President of Energy and Resources Policy Ross Eisenberg testifies at House Committee on Natural Resources subcommittee.

Today several news outlets reported that the Environmental Protection Agency (EPA) has sent the final Boiler MACT regulations over to the Office of Management and Budget (OMB) for final review. It’s expected that OMB will finish the review in the next few weeks, and the EPA will issue the regulations in the next month or so.

The Boiler MACT regulation will only add to the already cumbersome regulatory burden facing manufacturers of all sizes. These regulations will hurt our ability to compete and stifle job creation. The Council for Industrial Boiler Owners estimates the regs will cost more than $14 billion to implement.

The NAM has been urging the EPA to extend the compliance time for implementation and we hope that EPA will make these changes in the final rule. Manufacturers plan years in advance and the changes that these Boiler MACT regulations call for will require significant time for implementation.

On Friday, EPA filed a notice of appeal in the case Mingo Logan v. Environmental Protection Agency, litigation over EPA’s retroactive veto of a validly-issued Clean Water Act permit to Mingo Logan Coal Company to discharge fill material from it Spruce Mine No. 1 coal mine.  I guess I shouldn’t be surprised by this, but given the tone of U.S. District Judge Amy Berman Jackson’s opinion in the case, I am.

Judge Berman Jackson held that EPA exceeded its authority when it retroactively vetoed the Spruce Mine permit, a move that was “unprecedented in the history of the Clean Water Act.”  The Court concluded that the Clean Water Act “does not give EPA the power to render a permit invalid once it has been issued by the Corps,” and that “EPA’s interpretation of the statute to confer this power on itself is not reasonable.”  Later in the opinion, the Court described EPA’s actions as “the air of a disappointed player’s threat to take his ball and go home when he didn’t get to pitch.”

There’s a good public policy reason for holding as much, because the precedent created by EPA’s veto would have been significant.  As Judge Berman Jackson wrote:

It is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality. Indeed, this concern prompted a number of amici to take up their pens and submit briefs to the Court. They argued that eliminating finality from the permitting process would have a significant economic impact on the construction industry, the mining industry, and other “aggregate operators,” because lenders and investors would be less willing to extend credit and capital if every construction project involving waterways could be subject to an open-ended risk of cancellation. See Brief of Amicus Curiae The National Stone, Sand and Gravel Association in Supp. of Pl. Mingo Logan Coal Co., Inc. at 5–13; Brief of Amici Curiae the Chamber of Commerce of the United States et al. in Support of Pl. at 7–14. EPA brushed these objections away by characterizing them as hyperbole, Tr. at 66, but even if the gloomy prophesies are somewhat overstated, the concerns the amici raise supply additional grounds for a finding EPA’s interpretation to be unreasonable.

So the question then is, what could EPA possibly argue as a reason for appeal?  That it should be allowed under the Clean Water Act to create the uncertainty that all of these industries warned against?

Ross Eisneberg is vice president of energy and resources policy, National Association of Manufacturers.

On Friday, EPA announced that it had finished testing the drinking water in Dimock, Pennsylvania–a town that has become the epicenter of the hydraulic fracturing debate–and found no contaminants at levels of concern.

Will this settle things once and for all?  Of course not.  But it does seem to indicate that Pennsylvania’s fracking regulations are working.  That’s important because, partly based on fears that contamination may be occurring, the federal government jumped in and started regulating hydraulic fracturing.

One month ago, President Obama issued an Executive Order that not only recognized that “states are the primary regulators of onshore oil and gas activities,” but also that having ten different federal agencies all trying to regulate in addition to those states was a bad idea.

The Executive Order made sense.  What happened in the weeks afterwards didn’t.  Since the order was issued, the industry received three new federal regulations on fracking (two from EPA and one from the Department of Interior), which will undoubtedly interfere with state regulations.  The same state regulations that, according to EPA, made  61 out of 61 wells in Dimock safe.

Ross Eisenberg is vice president of energy and resources policy, National Association of Manufacturers.

Forty-five areas across the country got some bad news from the Environmental Protection Agency (EPA) today when it released information about what parts of the country are not meeting the 2008 air quality standards for ground-level ozone (i.e. ozone NAAQS). The map below shows the regions that are considered “non-attainment” areas:

Getting slapped with a non-attainment designation is a big deal for the geographic regions highlighted on the map. Just a few of the economic consequences of being a non-attainment area include:

• Restrictive permitting requirements for new industrial facilities or for existing facilities that make major modifications.
• Greater EPA involvement and oversight in permit decisions and continuing oversight by the Agency in permitting decisions even after the area has met the air quality standards.
• Loss of federal highway and transit funding – beginning one year from the date of the designation, federally-supported highway and transit projects cannot proceed in the area unless the state can demonstrate that the project will cause no increase in ozone emissions.
• Loss of industry and economic development in the area – any company interested in building a facility that emits ozone will probably not build a facility in the area due to the increased costs associated with the restrictive and expensive permit requirements.

Manufacturers continue to be extremely concerned about the EPA’s implementation of the current air quality standards and new standards for particulate matter (i.e. PM2.5) which are scheduled to be proposed in the next few months. As our nations job creators try to get our economy back on track, stringent air quality regulations and standards continually work to derail their progress.

It’s an uneasy feeling when your worst suspicisions are confirmed. That’s exactly what happen when a video of EPA Administrator Al Armendariz in the Region 6 Dallas office surfaced. Alarmingly, EPA’s Armendariz uses a rather crude analogy of how his staff should approach enforcement on energy producers by comparing it to Romans crucifying Turkish villagers.

“It was kind of like how the Romans used to, you know, conquer villages in the Mediterranean,” he said. “They’d go in to a little Turkish town somewhere, they’d find the first five guys they saw, and they’d crucify them.” 

Manufacturers and energy producers are already facing a litany of overreaching regulations from the EPA which are making it tougher to create jobs and grow. It’s concerning that an EPA official in charge of enforcement would make such a comment about the treatment of job creators. An adversarial approach to enforcement is not going to help our energy security. The aggressive targeting to specific energy producers does not get us closer to a true “all of the above” approach to energy.

Sen. Inhofe has already stated that he is going to begin an investigation into the EPA. Armendariz issued a statement apologizing for his poor choice of words. However, the EPA continues to move forward with harmful regulations which will increase energy prices for manufacturers.

Today the Wall Street Journal editorial board ran an editorial about the harm of the recently announced Environmental Protection Agency’s (EPA) proposed regulation on new coal power plants called the New Source Performance Standard. The piece is titled “Killing Coal” which is exactly what the EPA is doing with this proposed regulation.

The WSJ appropriately points out that according to the EPA this regulation will have zero cost so they have not done an economic analysis of the potential impact of the regulation. From the piece: 

But great news: The EPA estimates that the total cost of this rule will be $0. It will have no major effect on the economy. Not a single job will be lost.

How can that be? In its cost estimates, the EPA assumes the U.S. will never complete another coal-fired project. Ever. The agency is conceding that coal development has been shut down as a result of its many new regulations, such as the recent mercury rule and the illegal permitting delays that a federal appeals court slapped down last week.

If President Obama and his Administration are serious about an “all of the above” energy strategy then it must also include clean coal. To take this important source of energy off the table at a time when we need to be lowering energy costs is detrimental to our competitiveness.