[House Report 113-488]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-488
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PROMOTING NEW MANUFACTURING ACT
_______
June 23, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4795]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 4795) to promote new manufacturing in the United
States by providing for greater transparency and timeliness in
obtaining necessary permits, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 12
Statement of General Performance Goals and Objectives............ 12
New Budget Authority, Entitlement Authority, and Tax Expenditures 12
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 12
Committee Cost Estimate.......................................... 12
Congressional Budget Office Estimate............................. 12
Federal Mandates Statement....................................... 14
Duplication of Federal Programs.................................. 14
Disclosure of Directed Rule Makings.............................. 14
Advisory Committee Statement..................................... 14
Applicability to Legislative Branch.............................. 14
Section-by-Section Analysis of the Legislation................... 14
Changes in Existing Law Made by the Bill, as Reported............ 15
Minority, Additional, or Dissenting Views........................ 16
PURPOSE AND SUMMARY
H.R. 4795, the ``Promoting New Manufacturing Act,'' was
introduced by Rep. Steve Scalise (R-LA) on May 30, 2014. The
bill addresses preconstruction permits required under the Clean
Air Act (CAA) for major stationary sources, and would require
the Administrator of the Environmental Protection Agency (EPA)
to take the following actions:
To publish information regarding the
estimated number of permits issued annually and
timelines for making final permit decisions;
When establishing new or revised air quality
standards affecting the permitting process, to issue
implementing guidance and regulations at the same time;
and,
To report annually to Congress on actions
being undertaken by the agency to expedite the
processing of permit applications.
BACKGROUND AND NEED FOR LEGISLATION
In his State of the Union speech this year, President Obama
highlighted new manufacturing projects related to America's
abundant energy supplies, stating that businesses ``plan to
invest almost $100 billion in new factories that use natural
gas.'' He further stated that he would ``cut red tape to help
[S]tates get those factories built.''
H.R. 4795 seeks to ensure these new manufacturing
facilities will be built by improving the process for obtaining
air permits required under the federal CAA. In particular, the
bill addresses permits under the CAA's ``New Source Review''
(NSR) provisions that require that new or modified facilities
obtain a preconstruction permit before commencing construction
and install emissions control equipment as a condition of the
permit.
Preconstruction permits for a new major stationary source,
or a major modification of an existing major stationary source,
are issued under two permitting programs.\1\ The ``Prevention
of Significant Deterioration'' (PSD) program applies in
``attainment'' areas where the air quality meets national
ambient air quality standards (NAAQS),\2\ or cannot be
classified as either in ``attainment'' or ``nonattainment''
with the NAAQS. The ``Nonattainment NSR'' (NNSR) program
applies in areas that are not in attainment with the NAAQS.\3\
Because the NSR requirements are pollutant-specific, a
preconstruction permit application may require both PSD and
NNSR reviews. Collectively, the EPA refers to the PSD and NNSR
programs as the ``major NSR program.''\4\
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\1\The draft legislation applies only to ``Major NSR'' permits for
major stationary sources. The draft legislation does not apply to the
``Minor NSR'' program administered by States.
\2\EPA has established standards for six criteria pollutants:
carbon monoxide, lead, ozone, particulate matter (PM2.5/PM10), nitrogen
dioxide (NO2), and sulfur dioxide (SO2). See National Ambient Air
Quality Standards (NAAQS) available at http://www.epa.gov/air/
criteria.html.
\3\The PSD and NNSR programs are contained in parts C and D,
respectively, of Title I of the CAA. See CAA Part C of Title I,
Sec. Sec. 160-169, 42 U.S.C. Sec. Sec. 7470-7479 (PSD); CAA Part D of
Title I, Sec. Sec. 171-193, 42 U.S.C. Sec. Sec. 7501-7515 (NNSR). For
applicable federal regulations, see 40 CFR 51.165, 51.166, 52.21, 52.24
and part 51, Appendices S and W.
\4\The PSD program, which applies to criteria pollutants in areas
in compliance with the NAAQS, as well as certain non-criteria
pollutants regulated by EPA that do not have a NAAQS (see 40 CFR
52.21(a)(23)), requires installation of ``Best Available Control
Technology'' (BACT) technologies, based on a case-by-case determination
and taking into account cost and other factors. See Prevention of
Significant Deterioration (PSD) Basic Information available at http://
www.epa.gov/NSR/psd.html. The NNSR program, which applies to criteria
pollutants in areas that are out of compliance with the NAAQS, includes
more stringent requirements, including installing ``Lowest Achievable
Emissions Rate'' (LAER) technologies without taking into account costs
and other factors, obtaining emissions offsets and achieving a net air
quality benefit, and an alternatives analysis. See Nonattainment NSR
Basic Information available at http://www.epa.gov/nsr/naa.html.
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Under the major NSR program, EPA establishes the basic
permitting requirements through federal regulations. Although
the majority of major NSR permits are issued by State and local
permitting authorities, EPA also may be the permitting
authority in certain States.\5\ In instances where the EPA is
not the permitting authority, EPA may review and submit
comments on draft permits proposed by State or local permitting
authorities. The agency maintains a database that tracks
information relating to major source permits issued by the EPA
Regional Offices and by State and local air agencies.\6\
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\5\In the majority of States, the States have developed NSR
requirements and procedures that are defined and codified in a State
Implementation Plan (SIP) approved by EPA. Other States rely on EPA's
NSR program, and in these States, EPA has delegated authority on behalf
of the agency (delegated States). In still other States, EPA may be the
permitting authority. See, e.g. ``Where You Live'' available at http://
www.epa.gov/nsr/where.html.
\6\See ``RACT/BACT/LAER Clearinghouse'' available at http://
cfpub.epa.gov/rblc/. EPA estimates that the database currently contains
information for approximately 50 percent of the major NSR permits. See
EPA Technical Assistance available at http://docs.house.gov/meetings/
IF/IF03/20140528/102284/HMKP-113-IF03-20140528-SD003.pdf. In its annual
Budget Justification, the EPA reports the percentage of major NSR
permits within one year. See, e.g. U.S. EPA Fiscal Year 2015
Justification of Appropriation Estimates available at http://
nepis.epa.gov/Exe/ZyPDF.cgi/P100I0WA.PDF?Dockey=P100I0WA.PDF, at pp.
224, 829.
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By statute, a decision on a PSD permit application is
required to be made within one year of the filing of a
completed application. See CAA 165(c), 42 U.S.C. 7454(c). In
practice, however, the permitting process can take
significantly longer.\7\ EPA has estimated that during the
years 2008 through 2012, the percentage of major NSR permits
issued within one year of receiving a completed permit
application ranged from 46 percent to 80 percent depending upon
the year.\8\
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\7\See, e.g. EPA Oct. 15, 2012 Memo entitled ``Timely Processing of
Prevention of Significant Deterioration (PSD) permits when EPA or PSD-
Delegated Air Agency Issues the Permit'' available at http://
www.epa.gov/region7/air/nsr/nsrmemos/timely.pdf (summarizing ``best
practices and other recommended tools to foster timely and consistent
permit processing'').
\8\See U.S. EPA Fiscal Year 2015 Justification of Appropriation
Estimates available at http:// nepis.epa.gov/Exe/ZyPDF.cgi/
P100I0WA.PDF?Dockey=P100I0WA.PDF, at pp. 224, 829.
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Pending manufacturing projects and permitting challenges
There are currently tens of billions of dollars in
potential new manufacturing projects that have been announced,
largely due to America's abundant energy supplies.
At the legislative hearing on the discussion draft of H.R.
4795,\9\ Lorraine Krupa Gershman, Director of Regulatory and
Technical Affairs with the American Chemistry Council (ACC),
testified that ``America's chemical industry is undergoing a
historic expansion made possible by abundant, affordable
supplies of natural gas and natural gas liquids from shale
formations.'' She further testified that:
\9\The hearing was held on May 21, 2014 before the Energy and Power
Subcommittee of the Committee on Energy and Commerce.
[a]s of this week, 177 chemical industry projects,
valued at $112 billion in potential new U.S.
investment, have been announced. Fully 62 percent of
this is foreign direct investment. Within 10 years, the
new investments could generate tens of billions of
dollars in new chemical industry exports, and hundreds
of thousands of permanent new jobs.\10\
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\10\The chemical products to be produced are used in many everyday
products, including food packaging, film, trash bags, diapers, toys,
housewares, window frames, clothing, detergents carpets, home
furnishings and apparel, paints, electronics, and gasoline. See ACC,
May 2013, ``Shale Gas, Competiveness, and New US Chemical Industry
Investment: An Analysis Based on Announced Projects,'' Appendix 4
available at http://chemistrytoenergy.com/sites/chemistrytoenergy.com/
files/shale-gas-full-study.pdf.
Additionally, Ross Eisenberg, Vice President, Energy and
Resources Policy, National Association of Manufacturers,
testified that ``the boom in domestic energy production is
driving major new investment in manufacturing, and contributing
to increased U.S. competitiveness around the world.'' Further,
``for manufacturers, this could mean as many as one million new
jobs by 2025 as we build new iron, steel, cement, fertilizer,
chemicals, aluminum, plastics, and many other manufacturing
facilities, as well as the products that are made from these
materials, so the future is good.''
While there are billions of dollars in planned new
manufacturing projects in the United States, they face
regulatory uncertainty and potential delays in the permitting
process. At the May 21, 2014 hearing, ACC's Director of
Regulatory and Technical Affairs, Lorraine Gershman summarized
these challenges, stating:
All of these projects must undergo a lengthy and
complex environmental permitting process, filled with
challenges that could derail the investments. Problems
include uncertainty as to the schedule and process for
obtaining a final pre-construction permit, and a
requirement that companies use emission modeling
programs that cannot adequately accommodate site
specific data. Once a project is significantly delayed,
the project can be scrapped, and companies make plans
to proceed elsewhere.
Similarly, Ken Weiss, Managing Director for Global Air
Services with Environmental Resources Management (ERM),
testified that ``[c]ompanies seeking to execute capital
projects need to be able to develop realistic and predictable
project timelines'' so that ``equipment can be designed,
procured, installed, and brought online when expected, and also
support investment decisions.'' Currently, however, he
testified that there can be significant delays: ``We routinely
advise clients that obtaining a PSD permit can take anywhere
from 1 to 3 years, and that a minimum of 12 to 18 months need
to be allowed in the project schedule.''\11\
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\11\A June 2014 report recently concluded that, despite favorable
economics, many new manufacturing projects in the chemical industry are
being delayed for years due, in part, to ``a lengthy and uncertain
permitting process.'' See ``Unlocking the economic potential of North
America's energy resources,'' June 2014, Goldman Sachs Global Markets
Institute available at http://www.goldmansachs.com/our-thinking/our-
conferences/north-american-energy-summit/unlocking-the-economic-
potential-of-north-americas.pdf.
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One of the most challenging aspects of the permitting
process can be new or changing regulatory requirements,
including new or revised NAAQS. Such new or revised NAAQS apply
to preconstruction permit applications as soon as the new or
revised standards become effective, except in limited
circumstances.\12\ At the same time, EPA's implementing
regulations and guidance for how to comply with the new or
revised NAAQS may be significantly delayed.\13\
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\12\See, e.g. EPA Oct. 15, 2012 Memo, supra (new or revised NAAQs
``apply to any final permit issued after the effective dates of the
requirements unless the EPA has provided for grandfathering of the
specific requirements for applications pending on the effective date of
the new requirement''); see also April 1, 2010 Memo available at http:/
/www.epa.gov/region7/air/nsr/nsrmemos/psdnaaqs.pdf (``EPA generally
interprets the CAA and EPA's PSD permitting program regulations to
require that each final PSD decision reflect consideration of any NAAQS
in effect at the time the agency makes a final determination on a
pending application'').
\13\For example, EPA published a revised standard for fine
particulate matter on January 15, 2013 (see National Ambient Air
Quality Standards for Particulate Matter Final Rule, 78 Fed. Reg. 3086
((Jan. 15, 2013)), but has yet to issue final implementing regulations
and guidance. Similarly, for its revised ozone standards issued in
2008, the agency did not propose implementing regulations until 2013.
See Implementation of the 2008 National Ambient Air Quality Standards
for Ozone: State Implementation Plan Requirements, 78 Fed. Reg. 34178
(June 6, 2013).
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At the May 21, 2014 legislative hearing, witnesses
addressed the potential for permitting delays when EPA changes
NAAQS and fails to issue timely implementing regulations and
guidance. ACC's Director of Regulatory and Technical Affairs,
Lorraine Gershman testified: ``Lacking clear direction from
EPA, State permitting agencies and manufacturing facilities
have, at times, been left confused about the
requirements.''\14\ Similarly, Mr. Weiss testified: ``Guidance
is necessary, as many technical issues must be addressed in
determining how to conduct the analyses that can show
compliance with the ambient air quality standards. This is
particularly important, as EPA is constantly updating the
ambient air quality standards.'' He cited to various examples
of project delays caused by the lack of guidance accompanying
new, more stringent air quality standards.
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\14\Additionally, she testified that even as to earlier issued
NAAQS:
EPA is still working to implement some of these standards that they
have put in place, with the unintended consequences of not having the
models available, or not having monitoring available to make the
designations. Areas that are in limbo between standards do not
necessarily know how to proceed. This holds up permits. A lot of these
projects come with a substantial amount of financing attached. This
financing is not available indefinitely, and if these permits aren't
issued, there are times where the financing will disappear, and the
projects will therefore not go forward.
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For certain preconstruction permits, an additional source
of delay in the permitting process may be administrative
appeals to the EPA's Environmental Appeals Board (EAB). In
particular, for PSD permits issued by EPA or delegated States,
there is the potential for further delays during the pendency
of any appeal to the EAB. EPA has estimated that the average
time for resolution of such appeals is 5 months.\15\
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\15\See EPA Oct. 15, 2012 Memo, supra (``EAB review historically
has taken an average of 5 months from the time a petition is filed to
the time the EAB issued its decision in the matter''). The EAB has a
Standing Order giving priority to NSR permit appeals. See EAB Revised
Order Government Petitions for Review of Clean Air Act New Source
Review Permits filed March 27, 2013.
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At the May 21, 2014 legislative hearing, ACC's Director of
Regulatory and Technical Affairs, Lorraine Gershman, testified
that the bill ``represents a step towards a timely, efficient
and transparent regulatory process.'' NAM's Vice President for
Energy and Resources Policy, Ross Eisenberg, testified that the
bill ``takes a pragmatic approach to this very complex issue.''
ERM's Managing Partner for Global Air Services, Ken Weiss,
whose company has extensive experience in the permitting
process, testified that ``[t]he legislation will remove much
uncertainty, and related schedule delays from the air emissions
permitting process for major capital projects, and help ensure
continued growth in manufacturing in the United States.'' The
President and Chief Executive Officer of the Small Business &
Entrepreneurship Council, Karen Kerrigan, testified that
``Provisions that require the EPA to better monitor, make
public, and report on the timing of permits, and to provide
timely and concurrent guidance and rules about how to comply
with new or revised air quality standards, will establish
greater clarity and certainty for businesses and investors.''
What the Act Will Do
H.R. 4795 would provide for the following:
Permitting Dashboard: To provide more transparency regarding
the preconstruction permit process, the bill directs the EPA
Administrator to publish on the agency's website estimates of
the following information: 1) the total number of major NSR
permits issued annually; 2) the percentage of such permits
issued within one year after the date of filing of a completed
permit application; and 3) the average length of time for the
EPA's EAB to issue final decisions on petitions appealing
permit decisions. In preparing the report, EPA is not required
to seek additional information from States and local agencies
beyond the information already being voluntarily provided to
the agency's central permitting database.
Timely Rules and Guidance: To ensure timely guidance regarding
permitting requirements, the bill requires that if the EPA
Administrator establishes or revises a national ambient air
quality standard, the agency publish implementing regulations
and guidance at the same time, including information regarding
the submittal and consideration of preconstruction permit
applications. In terms of the information included in the
regulations and guidance, the Administrator has flexibility to
include such information as the Administrator determines to be
necessary and appropriate to assist States, permitting
authorities and permitting applicants.
Report to Congress: To promote timely review of permit
applications, the bill directs the EPA Administrator to report
annually on actions undertaken by the agency to expedite the
permitting process. In preparing the report, EPA is not
required to seek additional information from States and local
agencies beyond the information already being voluntarily
provided to the agency's central permitting database.
Additional considerations
At the legislative hearing, and in technical assistance
comments provided by the EPA on May 27, 2014,\16\ concerns were
raised that section 3(b) of the bill, which requires that EPA
issue concurrent implementing regulations and guidance for new
or revised air quality standards, could create a ``loophole''
or ``amnesty'' for new facilities by exempting them from the
obligation to install stringent control technologies. The
intent of section 3(b) is to ensure that EPA will be
accountable when it issues new air quality standards, and that
regulated entities will have the guidance they need to comply
with the new standards when the new standards become effective,
and will not be subject to permit delays.
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\16\See EPA Technical Assistance available at http://
docs.house.gov/meetings/IF/IF03/20140528/102284/HMKP-113-IF03-20140528-
SD003.pdf.
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The Committee notes that under the bill, the only
circumstance under the bill in which a new or revised air
quality standard would not apply to a pending permit
application is if EPA failed to issue timely guidance relating
to the permitting process. Under H.R. 4795, even if EPA fails
to provide such guidance, the bill expressly provides that
nothing in the bill changes the obligation of new facilities to
install ``best available control technology'' in attainment
areas, and the ``lowest achievable emissions rate'' technology
in nonattainment areas. As a practical matter, it is notable
that EPA itself ``grandfathers'' in certain preconstruction
permit applications, as it did when the agency issued its most
recent revisions to its particulate matter standards in 2012,
to avoid delaying or derailing projects.
At the legislative hearing, and in a June 5, 2014 letter
from the California Air Resources Board, concerns also were
raised that section 3(b) of the bill would prohibit States or
local permitting authorities from applying a new or revised
NAAQS if EPA failed to issue concurrent implementing
regulations and guidance. As noted above, the intent of section
3(b) is to ensure that EPA is accountable when issuing new
federal air quality standards and provides timely guidance to
permit applicants and permitting authorities. Under the NSR
program, nothing precludes States or local permitting
authorities from imposing more stringent requirements pursuant
to State or local law than the federal standards established by
EPA.\17\ Accordingly, if a State or local permitting authority
wanted to apply a new or revised NAAQS even in the absence of
EPA implementing regulations and guidance, H.R. 4795 would not
prevent such an approach.
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\17\See ``Where You Live'' (``States may develop unique NSR
requirements and procedures tailored for their air quality needs of
each area as long as the program is at least as stringent as EPA's
requirements.'') available at http://www.epa.gov/nsr/where.html.
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Supporters of the legislation
Supporters include the American Chemistry Council, National
Association of Manufacturers, Small Business & Entrepreneurship
Council, U.S. Chamber of Commerce, and the Industrial Energy
Consumers of America.
HEARINGS
The Subcommittee held a hearing on the discussion draft of
H.R. 4795 on May 21, 2014. The Subcommittee received testimony
from:
Ms. Lorraine Krupa Gershman, Director,
Regulatory & Technical Affairs, American Chemistry
Counsel;
Mr. Ross Eisenberg, Vice President, Energy
and Resources Policy, National Association of
Manufacturers;
Mr. Ken Weiss, Global Managing Partner, Air
and Climate Change, Environmental Resources Management
(ERM);
Ms. Karen Kerrigan, President and Chief
Executive Officer, Small Business & Entrepreneurship
Council;
Mr. John Walke, Senior Attorney and
Director, Climate and Clean Air Program, Natural
Resources Defense Council; and,
Mr. Colin O'Mara, Secretary, Delaware
Department of Natural Resources and Environmental
Control.
COMMITTEE CONSIDERATION
On May 28, 2014 and May 29, 2014, the Subcommittee on
Energy and Power met in open markup session and forwarded the
bill to the full Committee by a roll call vote of 14 ayes and 8
nays. During the markup, two amendments were offered and passed
by voice vote, two amendments were offered and rejected by
voice vote, and one amendment was offered and rejected by a
roll call vote.
On June 9, 2014 and June 10, 2014, the Committee on Energy
and Commerce met in open markup session. During the markup,
three amendments were offered, of which one was withdrawn and
two were rejected by roll call votes. A motion by Mr. Upton to
order H.R. 4795, reported to the House, as amended, was agreed
to by a record vote of 30 ayes and 19 nays.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Upton to order H.R. 4795 reported to the House,
without amendment, was agreed to by a roll call vote of 30 ayes
and 19 nays. The following reflects the roll call votes taken
during the Committee consideration:
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
H.R. 4795 provides direction to EPA to improve the
transparency and timeliness of the preconstruction permit
process under the Clean Air Act.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
4795 would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 4795 contains no earmarks, limited tax
benefits, or limited tariff benefits.
COMMITTEE COST ESTIMATE
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
June 20, 2014.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4795, the
Promoting New Manufacturing Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 4795--Promoting New Manufacturing Act
Summary: H.R. 4795 would impose various administrative
requirements on the Environmental Protection Agency (EPA) aimed
at increasing the transparency of its decisions and reducing
delays associated with the permitting process under the Clean
Air Act's New Source Review (NSR) preconstruction program.
Under that program, stationary sources of air pollution are
required to obtain permits prior to building any new facilities
or making any modifications to existing facilities. Usually,
NSR permits are issued by state or local air pollution control
agencies.
Enacting this legislation would require EPA to perform the
following activities:
Present on the agency's website the number
of preconstruction permits issued annually, the
percentage of such permits issued within one year after
filing an application, and the average length of time
for EPA's Environmental Appeals Board to resolve
administrative appeals;
Publish regulations and guidance to assist
states, permitting authorities, and permitting
applicants whenever final or revised national ambient
air quality standards are implemented; and
Submit an annual report to the Congress
identifying actions being taken by the agency to
expedite the permitting process and the specific
reasons for any delays in issuing permits.
CBO estimates that implementing this legislation would cost
about $2 million over the 2015-2019 period, subject to the
availability of appropriated funds. Enacting H.R. 4795 would
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
H.R. 4795 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: CBO estimates
that implementing H.R. 4795 would cost $2 million over the next
five years. The costs of this legislation fall within budget
function 300 (natural resources and environment).
Basis of estimate: For this estimate, CBO assumes that H.R.
4795 will be enacted by the end of 2014 and that the necessary
amounts to implement the legislation will be appropriated.
Based on information from EPA, CBO estimates that
implementing H.R. 4795 would have a small annual cost. Under
the legislation, EPA would provide permitting data on the
agency's website and prepare an annual report for the Congress
using information that is already collected. In addition, EPA
usually publishes implementing guidance associated with final
regulations. However, implementing this legislation would
ensure that such guidance is published concurrently rather than
after final regulations have been published. On balance, CBO
estimates that over the 2015-2019 period, implementing this
bill would cost about $2 million.
Pay-As-You-Go considerations: None.
Intergovernmental and private-sector impact: H.R. 4795
contains no intergovernmental or private-sector mandates as
defined in UMRA.
Estimate prepared by: Federal costs: Susanne S. Mehlman;
Impact on state, local, and tribal governments: Jon Sperl;
Impact on the private sector: Matthew Denneny.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
DUPLICATION OF FEDERAL PROGRAMS
No provision of H.R. 4795 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
The Committee estimates that enacting H.R. 4795
specifically directs to be completed no rulemakings within the
meaning of 5 U.S.C. 551 that would not otherwise be issued by
the agency.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
This section provides the short title of ``Promoting New
Manufacturing Act.''
Section 2. Building and manufacturing projects dashboard
This section directs the Administrator of the Environmental
Protection Agency (EPA) to publish in a readily accessible
location on the agency's website estimates of: (1) the number
of preconstruction permits issued annually under the Clean Air
Act's (CAA) New Source Review (NSR) program for major sources,
including ``Prevention of Significant Deterioration'' and
``Nonattainment NSR'' permits; (2) the percentage of such
permits issued within one year after the date of filing of a
completed application; and (3) the average length of time for
the EPA's Environmental Appeals Board to resolve administrative
appeals. Nothing in this section compels the EPA to seek
additional information from States and permitting agencies
beyond information voluntarily provided by State and local air
agencies for EPA's RACT/BACT/LAER Clearinghouse database.
Section 3. Timely issuance of regulations and guidance to address new
or revised National Ambient Air Quality Standards in
preconstruction permitting:
This section directs that in publishing any final new or
revised national ambient air quality standard (NAAQS), the EPA
Administrator shall publish concurrently implementing
regulations and guidance, as necessary and appropriate to
assist States, permitting authorities, and permitting
applicants. This section also provides that if the
Administrator fails to publish concurrently final regulations
and guidance addressing the submittal and consideration of
permit applications under a new or revised NAAQS, the new or
revised NAAQS shall not apply to preconstruction applications
until such final regulations and guidance have been published.
Nothing in the section shall be construed to eliminate the
obligation of a preconstruction permit applicant to install
best available control technology and lowest achievable
emissions rate technology, as applicable.
Section 4. Report to Congress on actions to expedite review of
preconstruction permits:
This section requires that EPA annually submit a report to
Congress on actions being taken by the agency to expedite the
process for issuing preconstruction permits. Nothing in this
section compels the EPA to seek information beyond information
voluntarily provided by States and local air agencies in EPA's
RACT/BACT/LAER Clearinghouse database.
Section 5. Definitions:
This section contains the following definitions:
(1) ``Administrator'' means the EPA Administrator.
(2) ``Best available control technology'' has the meaning
given that term in CAA section 169(3).
(3) ``Lowest achievable emissions rate'' has the meaning
given that term in CAA section 171(3).
(4) ``Major Emitting Facility'' and ``Major Stationary
Source'' has the meaning given to those terms in CAA section
302(j).
(5) ``National Ambient Air Quality Standard'' means a
national ambient air quality standard for an air pollutant
under CAA section 109 that is finalized after the date of
enactment of the Act.
(6) ``Preconstruction permit'' means a permit that is
required under part C or D of title I of the CAA for the
construction or modification of a major emitting facility or
stationary source, and includes any such permit issued by the
EPA or a State, local or tribal permitting authority.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.
DISSENTING VIEWS
I. SUMMARY
H.R. 4795, the ``Promoting New Manufacturing Act,'' does
nothing to promote new manufacturing or to improve the
permitting process for new and expanding manufacturing
facilities. Instead, the bill weakens air quality protections,
allows more pollution, and threatens public health.
The Clean Air Act requires major new or expanding sources
of air pollution to obtain permits with pollution limits before
the facilities start construction. These preconstruction
permits ensure that a new or expanded facility will not
increase local air pollution to levels that violate national
ambient air quality standards (NAAQS), which the Environmental
Protection Agency (EPA) sets for six principal air pollutants.
When EPA updates each air quality standard to reflect the
latest science, permit applicants have to meet the new, more
protective standard and show their emissions will not harm
public health.
H.R. 4795 creates a loophole in this process. The bill
establishes imprecise procedural requirements for EPA to follow
after setting a new air quality standard. If EPA does not meet
those requirements, then a new or expanding facility can apply
for a preconstruction permit based on the old air quality
standard, which is not adequate to protect public health. In
effect, this bill could give new sources of pollution
``amnesty'' from new science-based air quality standards.
This amnesty provision will allow more pollution to enter
the air, harming public health. It also does not make economic
sense. Allowing new facilities to pollute more than their fair
share means that existing industrial facilities may have to do
more to reduce their emissions if the area is near or in
nonattainment (exceeding the NAAQS or contributing to a nearby
area's violation of the NAAQS). It also raises the economy-wide
cost of cleaning up pollution. As the Clean Air Act has long
recognized, it is generally far more efficient and cost-
effective to build pollution controls into a facility up front,
rather than adding them later.
By setting vague procedural requirements for EPA to follow
and applying an outdated standard if EPA fails to meet those
requirements, the bill creates more regulatory uncertainty and
sets up new avenues for litigation. This will only serve to
delay preconstruction permitting for manufacturing facilities,
not expedite it, and it will harm public health in the process.
II. BACKGROUND
A. National Ambient Air Quality Standard-Setting process
The Clean Air Act requires EPA to set NAAQS for certain
pollutants that endanger public health and the environment. EPA
sets primary NAAQS at concentration levels sufficient to
protect the public health with an adequate margin of safety.\1\
Essentially, the primary NAAQS identify the level of ambient
air pollution that is ``safe'' to breathe.
---------------------------------------------------------------------------
\1\Clean Air Act Sec. 109(b)(1).
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EPA sets the NAAQS based on a thorough review of the
medical and scientific evidence, as well as advice provided by
an independent scientific review committee.\2\ EPA must review
each NAAQS every five years and make revisions as
appropriate.\3\
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\2\Id. at Sec. 109(d)(2).
\3\Id. at Sec. 109(d)(1).
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Once EPA establishes a NAAQS for a pollutant, the states
have primary responsibility for achieving pollution reductions
to meet the standard.\4\ Within a year after EPA establishes or
revises a NAAQS, each state must designate areas within its
borders as in attainment (meeting the NAAQS) or nonattainment
(exceeding the NAAQS or contributing to a nearby area's
violation of the NAAQS).\5\ EPA must issue final designations
within two years of issuing a NAAQS but can take an additional
year if more information is needed.\6\
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\4\Id. at Sec. 107(a).
\5\Id. at Sec. 107(d)(1)(A). Areas can also be designated as
``unclassifiable,'' if there is insufficient information available to
determine whether an area meets a NAAQS.
\6\Id. at Sec. 107(d)(1)(B).
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Within three years of EPA issuing a NAAQS, each state must
prepare and submit state implementation plans (SIPs) to require
and enforce pollution reductions sufficient to meet the NAAQS
in each air quality control region.\7\ If EPA disapproves a SIP
(or if a state fails to submit a SIP), EPA must promulgate a
federal implementation plan (FIP), unless the state corrects
any deficiencies in its SIP as needed to address EPA's
concerns.\8\
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\7\Id. at Sec. 110(a).
\8\Id. at Sec. Sec. 110(k), 110(c).
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EPA has issued and periodically updated general regulations
establishing requirements for state implementation of the
NAAQS.\9\ As part of the implementation process, EPA may issue
additional regulations or guidance to help states and regulated
entities implement a specific NAAQS, but EPA is not required by
statute to issue any regulations or guidance on implementation.
---------------------------------------------------------------------------
\9\40 C.F.R. Sec. 51.
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B. Preconstruction permitting
The Clean Air Act requires major new or expanding
stationary sources of air pollution to obtain permits before
they start construction. This requirement aims to ensure that a
new facility, or significant modifications to an existing
facility, will not significantly increase air pollution above
levels that are safe to breathe. The preconstruction permitting
provisions achieve this by: (1) requiring new and modified
sources to use control technology to reduce their emissions;
and (2) to assess, and if necessary address, their remaining
air quality impacts.
States, not EPA, issue the vast majority of preconstruction
permits.
The permitting requirements differ depending on whether the
new or modified source would be located in an attainment or
nonattainment area. In clean air areas that meet the NAAQS, the
facility owner or operator must obtain a preconstruction permit
under the Prevention of Significant Deterioration (PSD)
program. The owner or operator must demonstrate that the
facility is using best available control technology (BACT) and
that ``emissions from . . . such facility will not cause, or
contribute to, air pollution in excess of any . . . [NAAQS] in
any air quality control region.''\10\ As part of the permitting
process, the facility must conduct an air quality impact
analysis to show that the new emissions, in combination with
emissions from other nearby sources, will not cause or
contribute to a violation of the NAAQS.\11\ If the analysis
shows that the facility's emissions would drive the area into
nonattainment, then the facility may have to take additional
action to lower its emissions impact. The law specifies that
the permitting agency must grant or deny a PSD permit
application no later than one year after the completed permit
application was filed.\12\
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\10\Clean Air Act Sec. Sec. 165(a)(3) and (a)(4).
\11\Id. at Sec. 165(e).
\12\Id. at Sec. 165(c).
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For nonattainment areas, which already have unhealthy air,
the facility owner or operator must obtain a preconstruction
permit under the nonattainment new source review (NSR) program.
The nonattainment NSR program requires the facility to install
pollution controls sufficient to meet the lowest achievable
emission rate (LAER), which is the most stringent emission
limitation required by a state plan or achieved in practice by
that type of source. The program also requires any proposed new
emissions from the new or modified facility to be offset by
reductions from existing sources.\13\ The Clean Air Act does
not set a time limit for the permitting agency to act on a
nonattainment NSR permit application.
---------------------------------------------------------------------------
\13\Id. at Sec. 173.
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If the applicant or stakeholders disagree with a final
permit decision, they can appeal the decision. The venue for
this appeal depends on which permitting authority issued the
preconstruction permit. Most states operate their own
permitting programs, which are incorporated in their state
implementation plans. In these states, appeals are handled by
state or local administrative review boards and state courts. A
few states choose to operate EPA's permitting program through
delegated authority. For permits issued by these states, and
the few permits issued by EPA, the applicant or stakeholders
can petition the federal Environmental Appeals Board (EAB) for
review. The EAB can uphold EPA's permit decision or remand it
back to EPA to correct any identified legal deficiencies.
III. SECTION-BY-SECTION ANALYSIS AND CONCERNS RAISED BY THE BILL
A. Section 2
Section 2 of the bill requires EPA to create an online
database of information about preconstruction permitting since
fiscal year 2008. This database is to include the number of
preconstruction permits issued each year; the percentage of
those permits issued within a year of the date of filing a
completed application; and the average length of time for the
EAB to issue a final decision on petitions appealing a decision
to grant or deny a preconstruction permit application. Section
2 requires EPA to publish this data within 60 days of enactment
and to update it annually.
The bill, as amended during the subcommittee markup,
provides that EPA can rely on information that it already has
in its possession and does not have to collect any additional
information from state and local permitting authorities in
order to meet the requirements of section 2.
EPA currently maintains an online database--the RACT/BACT/
LAER clearinghouse--to share information about air pollution
control technologies used in permitting decisions.\14\ State
and local permitting agencies report permit information to EPA
on a voluntary basis. EPA estimates that the database reflects
only about half of the permits issued.
---------------------------------------------------------------------------
\14\U.S. Environmental Protection Agency, RACT/BACT/LAER
Clearinghouse (RBLC) (online at http://cfpub.epa.gov/rblc/).
---------------------------------------------------------------------------
If EPA relies on this clearinghouse to calculate statistics
about permitting times for the new database, the statistics
would be misleading at best, since they would be based on a
partial and non-representative sample of permits. In fact, the
statistics are likely to over-estimate permitting times, since
state and local permitting authorities may be more likely to
report unique or particularly challenging permits to the RACT/
BACT/LAER clearinghouse and omit more straightforward permits.
To obtain a more comprehensive picture of permitting times, EPA
would have to collect information from state and local
permitting agencies, which would strain the resources of the
same officials tasked with processing the preconstruction
permits.
As a result, it is unclear whether the bill's new
permitting database serves any useful purpose.
B. Section 3
Subsection 3(a) effectively requires EPA to issue
regulations and guidance for implementing a new or revised
NAAQS ``concurrently'' with issuing the new or revised air
quality standard. If EPA fails to do so, subsection 3(b) defers
application of the new air quality standard to a new
preconstruction permit ``until the Agency has published such
final regulations and guidance.'' During the Subcommittee
hearing on the bill, Rep. Dingell asked Collin O'Mara,
Secretary of the Delaware Department of Natural Resources and
Environmental Control, whether the language in section 3 would
help his agency process preconstruction permits any faster.
Secretary O'Mara answered ``no.''\15\
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\15\House Committee on Energy and Commerce, Subcommittee on Energy
and Power, Testimony of Collin O'Mara, Secretary, Delaware Department
of Natural Resources and Environmental Control, Legislative Hearing on
H.R. __, the ``Promoting New Manufacturing Act,'' 113th Cong. (May 21,
2014) (hereinafter ``O'Mara testimony'').
---------------------------------------------------------------------------
EPA issuance of ``concurrent'' rules and guidance
Subsection 3(a) of the bill directs EPA to issue
regulations and guidance concurrently ``as the Administrator
determines necessary and appropriate to assist states,
permitting authorities, and permit applicants.'' This
qualifying language appears to give EPA some discretion to
determine when such rules and guidance are appropriate. But
subsection 3(b) of the bill takes away that discretion.
Subsection 3(b) states that if EPA fails to publish final
regulations and guidance concurrently with a new air quality
standard, then new facilities can receive preconstruction
permits under the old air quality standard rather than the new
one. As a result, EPA will have no real choice about when and
if to issue rules and guidance, if the agency aims to ensure
all permit applicants comply with the new air quality standard.
As a practical matter, it is not always feasible or
advisable for EPA to issue concurrent implementation
regulations and guidance when revising a NAAQS. Most guidance
develops organically as states and regulated entities begin to
implement the NAAQS and ask EPA questions. Moreover, in some
cases, the existing implementation regulations are sufficient
for the revised NAAQS, and no new guidance is even needed.\16\
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\16\See, e.g., the recent revision of the lead NAAQS.
---------------------------------------------------------------------------
In its technical assistance to the Committee, EPA raised
these concerns. EPA explained that implementing regulations are
sometimes but not always necessary, as the general
implementation rules apply to new NAAQS, even without revision.
EPA also explained that guidance is most often the result of
consultation with state and local air agencies and affected
sources after they begin the process of implementing the NAAQS.
EPA expressed concern that requiring EPA to issue unnecessary
or premature rules and guidance could complicate the ability of
EPA, the states, and regulated parties to meet their legal
obligations and create greater regulatory uncertainty.
Moreover, state and local permitting agencies do not need
concurrent EPA rules and guidance to begin processing
preconstruction permits under a new air quality standard. At
the subcommittee hearing, Secretary O'Mara took issue with what
he called the ``underlying assumption of the legislation,''
that ``permitting authorities are incapable of managing the
pre-construction permitting process'' despite ``decades of
experience showing otherwise.'' He testified that a ``wealth of
guidance and tools'' exist that the state can use after EPA
adopts or revises a NAAQS. He also noted that the state, on
occasion, has ``found that approaches that we developed during
transition were more flexible and protective than those
contained in the guidance issued later by EPA.''\17\
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\17\O'Mara testimony.
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The California Air Resources Board (CARB) wrote a letter to
the Committee sharing similar concerns. CARB wrote: ``For
decades, permitting authorities have successfully implemented
their programs in response to every new standard U.S. EPA has
promulgated. In fact, permitting agencies have historically
been the advisors to U.S. EPA on the guidance it ultimately
releases.''\18\
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\18\Letter from Mary D. Nichols, Chairman, California Air Resources
Board, to the Honorable Fred Upton and the Honorable Ed Whitfield,
Committee on Energy and Commerce (June 5, 2014) (hereinafter ``CARB
letter'').
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Impact on air quality
Section 3 also allows certain facilities to emit more air
pollution and harm public health.
If EPA fails issue concurrent rules and guidance as
required by section 3, an applicant for a preconstruction
permit need not comply with a new NAAQS until EPA has published
final regulations and guidance. During the Subcommittee hearing
on the bill, John Walke, Senior Attorney and Director of the
Climate and Clean Air Program at the Natural Resources Defense
Council, referred to this as ``amnesty'' from national air
quality standards.\19\
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\19\House Committee on Energy and Commerce, Subcommittee on Energy
and Power, Testimony of John Walke, Natural Resources Defense Council,
Legislative Hearing on H.R. __, the ``Promoting New Manufacturing
Act,'' 113th Cong. (May 21, 2014) (hereinafter ``Walke testimony'').
---------------------------------------------------------------------------
The Subcommittee on Energy and Power amended the bill to
add a statement that section 3 does not eliminate the
obligation of a preconstruction permit applicant to install
best available control technology and lowest achievable
emissions rate technology, as applicable. However, this new
language, contained in section 3(c)(2), does not change the
legal effect of the bill or have any impact on the amnesty it
provides. A facility still could obtain a preconstruction
permit based on an old air quality standard.
When a company applies for a preconstruction permit to
build a new facility or modify an existing one, there are two
steps. In step one, the company must determine which pollution
controls it will install to reduce the facility's emissions.
The bill does not appear to affect this obligation to identify
effective pollution controls, and section 3(c)(2) reiterates
that the obligation remains.
In step two, the applicant must estimate how much pollution
the new source will emit, after installing pollution controls,
and show that it will not cause a violation of the air quality
standard. In other words, the applicant must model air
pollution in the area and show that adding pollution won't make
the air unsafe to breathe. If the new facility's emissions will
cause a violation of the air quality standard, the applicant
must take additional steps to cut its emissions or obtain
offsets for the excess pollution.
The bill interferes with this second step of the process,
the point at which the facility has to prove that its pollution
will not harm public health. If EPA does not issue rules and
guidance at the same time it issues a new air quality standard,
the old air quality standard applies for purposes of a
preconstruction permit. This means that when the facility is
demonstrating whether its emissions will violate the air
quality standard, it is using the old, insufficiently
protective standard as a benchmark.
In practical terms, this will allow some facilities to emit
extra pollution at levels that could harm public health. EPA or
a state permitting agency might have to issue a permit for a
higher-polluting facility that, under current law, would have
to install additional pollution controls to lower its emissions
before receiving that permit.
This would worsen air quality, particularly in communities
downwind of the facility, and harm public health. Secretary
O'Mara from the state of Delaware testified that the
legislation would ``undermine the basic framework of the Clean
Air Act--to protect public health of all Americans with an
adequate margin of safety--and will undercut public confidence
in permitting programs that were designed to protect public
health, because regulatory agencies will be required to allow
harmful emissions in exceedance of a new NAAQS.''\20\ CARB
wrote that the bill bars permitting agencies from applying a
new air quality standard to preconstruction permits, ``even if
public health concerns would otherwise warrant doing so.''\21\
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\20\O'Mara testimony.
\21\CARB letter.
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Impact on the cost of and responsibility for cutting air
pollution
Section 3 would shift the burden of air quality
improvements to existing industrial facilities. For example, in
an attainment area, if an applicant for a preconstruction
permit does not have to meet a revised (more protective) NAAQS,
then that facility is in effect using up more of the local air
emissions ``budget'' than it should be. This could make it more
difficult for existing sources in the area to expand their
facilities without pushing the area closer to or into
nonattainment. New facilities also may find it harder to locate
in the area in the future. Secretary O'Mara said it would be
``highly unfair'' to force new and existing sources to ``make
up'' for a facility that emits ``more pollution than otherwise
would be allowed.''\22\
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\22\O'Mara testimony.
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In an area that is already in nonattainment, a new or
modified facility that is allowed to emit more pollution
because it was permitted under an old NAAQS necessarily will
force other industrial sources in the nonattainment area to
make deeper air pollution reductions to bring the area into
attainment with the new NAAQS. John Walke testified that the
bill's ``amnesty'' provision ``would only make it more
difficult for state and local officials to deliver clean air to
their citizens, and more difficult for other local businesses
to grow while making up for the statutory amnesty granted to
newly constructed or modified facilities.''\23\
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\23\Walke testimony.
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The bill also has the perverse effect of increasing the
cost to industry of achieving air quality standards. The Clean
Air Act recognizes that it is generally far less costly and
more efficient to install pollution controls when a facility is
being designed or significantly modified, rather than
retrofitting existing facilities with additional pollution
controls. Thus, many provisions of the Act require more
stringent pollution controls for new and modified sources,
compared with existing sources. This bill, however, allows new
facilities to forego installing the most effective pollution
controls at the front end, which could end up costing that
facility and other existing and future facilities more at the
back end. As Secretary O'Mara testified, a ``very likely result
of this bill would be to heap additional, costly pollution
reduction requirements on already stressed existing sources,
rather than allowing for the efficient installation of
pollution controls while new sources are being constructed,
which is the most cost-effective way to reduce pollution into
the future.''\24\
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\24\O'Mara testimony.
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Impact on regulatory certainty, litigation risks, and
permitting timing
The language in section 3 creates regulatory uncertainty,
increases the risk of litigation, and could slow permitting
rather than expedite it.
Subsection 3(a) of the bill directs EPA to issue
regulations and guidance ``concurrently'' with any new or
updated NAAQS. As noted above, however, it is not always
feasible or advisable for EPA to issue concurrent
implementation regulations or guidance when revising a NAAQS.
This creates a catch-22 for EPA. On the one hand, EPA could
hurry to issue implementation guidance before hearing questions
from states and industry. That guidance will necessarily be
incomplete, as it will not address issues that only emerge
during the implementation process. An industry group that
wanted to delay implementation of the new air quality standard
could file a lawsuit saying that EPA's guidance was not
sufficient.
On the other hand, EPA could wait to issue more robust and
helpful guidance, but in the meantime, facilities would be able
to obtain preconstruction permits under the old air quality
standard. Downwind communities and nearby businesses might
challenge a permit that allows a new facility to pollute more
and shifts the burden of pollution reduction on to them.
Overall, section 3 leaves open to interpretation--and
litigation--which rules and guidance EPA must release
``concurrently'' to prevent a delay in applying the new or
revised NAAQS, what constitutes ``final'' regulation and
guidance, and which rules and guidance EPA can wait to release
at a later time. This uncertainty creates new opportunities for
more lawsuits and delay.
CARB argues that this bill could actually slow the
permitting process by forcing states to wait for EPA guidance,
even if the state does not think that guidance is necessary to
issue permits. CARB wrote:
States such as California, with several regions
having severe air quality issues, need the flexibility
to develop and implement programs that are protective
of public health and welfare while accounting for local
air quality, population exposure, the economy, and
other factors. Waiting for U.S. EPA to develop guidance
will result in unnecessary delays and public health
risks because permitting agencies appear to be barred
from issuing permits consistent with new, more health-
protective air quality standards until U.S. EPA
provides guidance.\25\
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\25\CARB letter.
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Amendments Defeated During Markup
At the full Committee markup, Democratic members offered
two amendments that aimed to fully or partially address the
concerns raised by section 3. Rep. Waxman offered an amendment
to strike subsection 3(b), which allows a facility to obtain a
preconstruction permit under an old air quality standard if EPA
does not meet certain procedural requirements. The Waxman
amendment was defeated by a roll call vote of 18-27. Rep.
McNerney offered an amendment to give a federal, state, or
local permitting authority the choice to opt out of
implementing subsection 3(b), if that permitting authority
determines that the 3(b) loophole would increase air pollution,
slow the permitting process, increase regulatory uncertainty,
create new litigation, shift the burden of pollution control to
existing facilities, or increase the overall cost of achieving
air quality standards. The McNerney amendment was defeated by a
roll call vote of 19-27.
C. Section 4
Section 4 requires EPA to submit an annual report to
Congress about the agency's efforts to expedite the process for
issuance of preconstruction permits. EPA also must identify any
reasons for delays in issuing preconstruction permits and
describe what EPA is doing to resolve those delays. The bill
requires EPA to collect and respond to public comment on each
report to Congress.
Because EPA is not the permitting authority for the vast
majority of preconstruction permits, it is unclear how EPA
would be able to explain or commit to resolve any permitting
delays, as required in the annual report to Congress mandated
by section 4, except in the small minority of cases for which
EPA is the permitting authority. Completing these annual
reports could require EPA to involve itself more deeply in
state and local permitting decisions. These requirements would
also slow the permit process by diverting limited EPA resources
from processing permits, issuing guidance, and providing
support to state and local permit authorities.
Section 5 specifies that EPA is not required to collect any
additional information from state and local permitting
authorities to complete this report, but it is unclear how EPA
could complete the report without doing so.
For the reasons stated above, we dissent from the views
contained in the Committee's report.
Henry A. Waxman,
Ranking Member.
Bobby L. Rush,
Ranking Member,
Subcommittee on Energy and Power.