Twenty-three state manufacturing and business associations today submitted comments to the Environmental Protection Agency objecting to the EPA’s move to reduce the national standards for ground-level ozone.

In 2008, after a lengthy regulatory process that included public comment and hearings, the EPA lowered the 1997 National Ambient Air Quality Standards (NAAQS) for ozone from 84 parts per billion (ppb) to 75 ppb. The EPA then in January proposed new rules to drop the standard for ozone below 75 ppb, this despite the fact that air quality has been steadily improving under the 1997 standards. Ground-level ozone contributes to smog.

As the associations’ letter states:

EPA’s proposal to lower the ozone NAAQS will unnecessarily cause severe economic harm. Large swathes of the United States will be designated as being non-compliant with the new rule and will be unable to comply with a new rule. Lowering the existing 75 ppb standard to the lower end of the proposed range of 60 ppb would result in almost tripling the number of counties being designated as being in violation of the Clean Air Act (CAA). Designating an area as being in violation (or in “nonattainment’) moreover, leads to new mandates and costs under the CAA, including additional control requirements for manufacturers, the need for new business to undergo nonattainment New Source Review permitting, and the imposition of financial penalties in areas failing to meet the new standards. All these actions will discourage new businesses from locating in nonattainment areas and restrict the growth of existing businesses.

This is not the time to impose these sorts of costs on American business, just as we are recovering from the recent financial downturn in which more than 2.1 million manufacturing jobs have been lost. It makes no sense to hurt local economies already struggling to emerge from the recession. The U.S. is projected to spend approximately $9.6 billion per year on compliance costs with the current standard by 2010. A more stringent ozone standard could impose $22 billion in additional annual compliance costs on industry, costing even more jobs.

The associations also argue that the EPA failed to follow the process required by the Clean Air Act in attempting to justify this new rule.

The EPA issued the proposed rule on Jan. 11, 2010 (Federal Register notice here), and today is the comment deadline. The final rule is expected by September.

The Environmental Protection Agency on Wednesday held a daylong hearing in Arlington, Va., on its proposed rule to use Clean Air Act authority to control greenhouse gas emissions from large industrial producers. The NAM’s Bryan Brendle, director of Energy and Resources Policy, represented the National Association of Manufacturers. From his testimony:

EPA’s Strategy Has Legal Flaws, Creates Uncertainty

The EPA is entering uncertain legal territory by proposing to regulate very large facilities at the 25,000 ton per year (TPY) emissions level for GHGs under programs that federal law requires to be regulated at the 100 – 250 TPY level. At the same time, EPA proposes to establish a process by which it will consider ways to regulate even smaller sources, therefore laying the groundwork for even greater expansion of its regulatory power. Furthermore, litigation offers another avenue to regulation of small and mid-sized manufacturers as litigants force EPA to adhere to the requirements of federal law. The CAA [Clean Air Act] does not allow EPA unilaterally to raise the PSD threshold, because the CAA explicitly states that PSD includes “any. . . source with the potential to emit two hundred and fifty tons per year or more of any air pollutant.” 42 U.S.C. § 7479(1). To add to the uncertainty, the tailoring proposal also allows
states to move forward with more stringent permitting requirements, which would lead to the creation of a patchwork of state regulatory programs, leading to compliance obstacles for what would amount to first-time regulations.

Brendle’s complete statement is here.

The second day of hearings is under way in Rosemont, Ill. The EPA has provided a list of speakers. For more on this executive branch agency’s attempt circumvent the policy-making branch of government through regulation, see the EPA’s New Source Review page.

A logical, completely common-sense rule is issued by the EPA, with the end result being the generation of additional, much-needed electrical power. From the Washington Post, “Expanding Facilities Get Relief From EPA“:

The Environmental Protection Agency issued a new rule yesterday that will make it easier for industrial plants, refineries and paper mills to expand operations without applying for new pollution permits under the Clean Air Act.

The rule, part of the Bush administration’s ongoing effort to revamp a pollution-control program known as New Source Review, says that when expanding or modernizing plants calculate their emissions to determine whether they need to install new control measures, they are not required to include emissions from unrelated activities at the same plant.

Seems straightforward enough: Regulation of emissions affected by the installation of new equipment should address those specific emissions, not something totally unrelated.

The EPA has been working on the rule for two years, and the NAM welcomes the outcome.

“Frankly, I’m a little surprised they’ve gotten to this,” said Bryan Brendle, director of energy and resources policy at the National Association of Manufacturers. Brendle added that his association “supports any sort of simplification and streamlining of a fairly cumbersome program” such as New Source Review.

Also, “Brendle said that manufacturers had hoped the administration would approve the original troika of changes but that ‘one is better than nothing.’”

• EPA news release, “Air Permit Policy Revised for Aggregating Facility Changes”

The anti-jobs activist group, OMB Watch, has recorded great success in pitching the claim that the Bush Administration is rushing through a batch of “midnight regulations”  meant to circumvent the normal regulatory process. As we’ve posted, the Washington Post led its paper with the story last week and ABC-TV News accepted the thesis, as well.

Now comes a CBS Evening News story, in which reporter Jim Axelrod actually presents both sides of the issue, that of OMB Watch and the White House, effectively refuting the charges of regulatory expedience.

Of course, in doing so, CBS defaults to the activists’ issue-defining terminology, the claim that the White House wants to “roll back regulations controlling air pollution, weakening the requirement to upgrade costly emission controls.”

Bunk.

CBS’s co-marketing of the OMB pitch is a reference to “New Source Review,” an issue the Wall Street Journal addresses in its lead editorial today, “New Source Rescue“:

When environmentalists oppose regulations that yield environmental benefits, something is afoot. So it is with the gathering furor over a possible Bush Administration upgrade of U.S. clean-air regulations.

Senate Democrats Barbara Boxer and Tom Carper wrote to the Environmental Protection Agency last month expressing their “grave concern” about “this dangerous proposal.” House Oversight Chairman Henry Waxman is “gravely concerned” too, about the EPA’s “reckless disregard of legal constraints on its rulemaking authority.” The trio and the green lobby are already shouting about “midnight regulations,” the last-minute ritual at the end of every Presidency.

But this rule was first proposed in 2005, and the Administration may — or may not — get around to issuing a final verdict this week. The proposal would usefully reform a permitting test called New Source Review, or NSR, which requires power plants to install state-of-the-art pollution controls when they expand their generation capacity, thus increasing smog- or soot-forming emissions.

 And…

Mr. Waxman gives the game away when he claims that the new rule would increase carbon dioxide emission by 74 million tons annually, even though CO2 is not (yet) regulated under clear-air laws. What he really means is that without this rule change the EPA will soon force the decommissioning of a large portion of the U.S. coal-fired power portfolio under New Source Review. Some 71% of the national’s coal capacity is between 27- and 57-years-old, and environmentalists want to measure any emissions change as an “increase” so that these plants are shut down.

The latest regulatory proposal for NSR is from 2005, but the Administration — and the NAM — has been working on the issue since 2001. Hard to see how seven years of labor is a rushed-through midnight regulation.

In the CBS news story, OMB Watch’s Matt Madia is honest to admit the real objection is to the substance of the regulations: “It’s environmental issues, it’s workplace safety, it’s traffic safety.” OMB Watch also objects to the “common theme for a lot of these rules, is that they’re going to be for the benefit of industry.” And since industry is by definition bad, all the rules are bad.

In the case of New Source Review, the specific goal is to prevent the continued operation of coal-fired power plants, whether they’re cleaner or not. So the protests and shouting and crying about “midnight regulations” is nothing more a sexy angle to get the media to write a story. As a media strategy, it’s a clear success. As an honest contribution to the public debate, it’s a shameful failure.