Tag: EPA

NAM Joins in Filing Reply Brief on the EPA Ozone Limits Case

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.

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Federal Appeals Court Rejects EPA’s Overreach Again

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…)

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NAM Joins Brief Challenging EPA’s Utility MACT Rule

Last Friday the National Association of Manufacturers joined several other business groups in filing an amicus brief in the U.S. Court of Appeals for the District of Colubmia urging the court to strike down the EPA’s Utility Mercury and Air Toxics Standards (MATS) for new power plants.

This burdensome and costly regulation from the EPA is already having an impact on jobs, as several plants throughout the country are being forced to close. Utility MATS will also drive up energy prices on manufacturers who use one-third of the energy our nation consumes.

The amicus brief filed Friday argues that the EPA set standards that utilities are unable to meet with existing technology. This methodology has an impact on other manufacturing sectors that are also subject to similar regulations.  The EPA’s approach will ultimately prevent construction of new plants because of the inability to meet these new unachievable standards.

With unemployment stuck at 8.3 percent and weekly indicators showing economic growth is slowing manufactures simply can’t afford an energy price increase.

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“Settling” Itself Up To Fail

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…)

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EPA to Review Regulation on Mercury and Air Toxics Standards for New Power Plants

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.

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California Manufacturers Concerned with Proposed Air Quality Regulations

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.

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Ross Eisenberg Testifies at House Committee on Natural Resources Subcommittee

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.


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Boiler MACT Regs go to OMB for Review

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.

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EPA Appealing Spruce Mine Veto Decision

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.

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Facts Get in the Way of a Controversy Yet Again

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.

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