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S. HRG. 115–131 

PROMOTING AMERICAN LEADERSHIP IN 

REDUCING AIR EMISSIONS THROUGH INNOVATION 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 15, 2017 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.fdsys.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

KAMALA HARRIS, California 

RICHARD M. RUSSELL, Majority Staff Director 

GABRIELLE BATKIN, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

NOVEMBER 15, 2017 

OPENING STATEMENTS 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 1 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 7 

WITNESSES 

Coddington, Kipp, Director, Carbon Management Institute, School of Energy 

Resources, University of Wyoming ..................................................................... 11 

Prepared statement .......................................................................................... 13 

Responses to additional questions from Senator Barrasso ........................... 22 

Eisenberg, Ross, Vice President, National Association of Manufacturers .......... 27 

Prepared statement .......................................................................................... 30 

Responses to additional questions from: 

Senator Barrasso ....................................................................................... 60 

Senator Whitehouse .................................................................................. 63 

Lipman, Zoe, Director, BlueGreen Alliance ........................................................... 89 

Prepared statement .......................................................................................... 91 

Responses to additional questions from Senator Whitehouse ...................... 98 

ADDITIONAL MATERIAL 

Letter to Senators Barrasso and Carper from the American Coatings Association, December 6, 2017 ........................................................................................ 137 

Streamlining Permitting and Reducing Regulatory Burdens for Domestic 

Manufacturing, U.S. Department of Commerce, October 6, 2017 .................... 143 

Final Report on Review of Agency Actions that Potentially Burden the Safe, 

Efficient Development of Domestic Energy Resources Under Executive 

Order 13783, U.S. Environmental Protection Agency, October 25, 2017 ........ 198 

(1) 

PROMOTING AMERICAN LEADERSHIP IN REDUCING AIR EMISSIONS THROUGH INNOVATION 

WEDNESDAY, NOVEMBER 15, 2017 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m. in room 

406, Dirksen Senate Office Building, Hon. John Barrasso (Chairman of the Committee) presiding. 

Present: Senators Barrasso, Carper, Inhofe, Capito, Boozman, 

Fischer, Ernst, Whitehouse, Markey, and Harris. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Good morning. I call this hearing to order. 

Today we are here to discuss America’s continued leadership in 

reducing air emissions. 

The United States has always been a leader in reducing air pollution by supporting and allowing the private sector to find innovative ways to reduce emissions. In fact, since 2005 the United States 

has reduced its combustion related carbon dioxide emissions more 

than any nation in the world. The development of innovative drilling methods has allowed domestic oil and gas producers to economically access natural gas, a low emitting fuel. Development of 

new technologies has consistently reduced our emissions, grown our 

energy, and improved how we use our resources. 

Between 1970 and 2015 GDP grew by 246 percent, while emissions of particulate matter, ozone, lead, carbon monoxide, nitrogen 

dioxide, and sulfur dioxide dropped by an average of 70 percent. 

New technologies have improved how we use energy to reduce 

emissions. 

Today I am excited to hear about research at the University of 

Wyoming on similarly promising technologies that will allow us to 

both continue reducing our emissions and use our natural resources. 

The University of Wyoming School of Energy Resources was established by our State legislature in 2006, and it serves as a bridge 

between academia and industry. The school conducts applied research to develop innovative solutions to solve critical energy and 

environmental challenges faced by our nation and the world. These 

technologies include carbon capture, utilization, and sequestration, 

2 

which has already received bipartisan support from my colleagues 

on this Committee. 

In addition to carbon capture, utilization, and sequestration, the 

University of Wyoming is exploring research related to advanced 

coal combustion, rare earth elements from coal and coal by-products, carbon engineering, and measurements of methane and volatile organic compounds emissions from oil and gas operations. 

Significant innovation is also occurring in the manufacturing sector. American manufacturers are the most productive in the world 

due to their dedication to always improving efficiency. At the same 

time, American manufacturers—in their entirety—have a strong 

track record of reducing their environmental impact. 

According to the National Association of Manufacturers, who is 

represented here today, greenhouse gas emissions from the manufacturing sector has decreased by 10 percent over the past decade, 

while increasing their value to the economy by 19 percent. 

During the last Administration, America moved away from an innovative approach and instead pursued a regulatory approach, 

which punished our businesses instead of supporting and collaborating with them. The last Administration’s misguided policies included signing the U.S. up for the Paris Agreement, a deal that I 

thought was a bad deal; it would have stifled American growth. 

I would like to introduce into the record the article published on 

the front page of yesterday’s Washington Times entitled Emissions 

Report Casts Doubt on Paris Accord. The sub-headline is China 

Still Polluting as U.S. Cleans Air. China Still Polluting as U.S. 

Cleans Air. 

Without objection, this will be admitted into the record. 

[The referenced information follows:] 

3 


28078.001

Paris deal failing? Global emissions up 2% despite U.S. drop; Chinese pollution skyrocke... Page 1 of 4 

Paris deal failing? Clobal 

emissions up 2% despite U.S. 

drop; Chinese pollution 

skyrockets 

China has kept its emissions in check in recent years but now shows a massive rise in pollurion. Unrkr the PanS paa. 

China agreed to cap its emissions by 2030, meaning irIs still free to increase pnllution. (Associated Press/File} more > 

By Ben Wolfgang- The Wruhington nmes- Monday, November 13, 2017 

Two years after nearly every nation on earth signed the landmark Paris 

climate accord, researchers say the deal is failing to live up to its mission as 

China drives a spike in global carbon emissions, reversing years of steady 

decline. 

https://www. washingtontimes.cornlnews/2017/nov!l3/global-emissions·2·pct-despite-us-... ll/15/20 !7 
4 


28078.002

Paris deal failing? Global emissions up 2% despite U.S. drop; Chinese pollution skyrocke... Page 2 of 4 

The sobering news comes as world leaders gather in Germany for a highlevel climate summit designed to marshal support for the Paris agreement 

and to encourage countries to make even more ambitious commitments to 

cut their own pollution. 

Other nations have been critical of President Trump for announcing over the 

summer that the u.s. would pull out of the deal, but data released Monday 

show that American emissions are still dropping while those of China and 

other countries are back on the rise. 

Several studies released by the Global Carbon Project say worldwide carbon 

emissions are projected to jump about 2 percent this year after staying flat 

for three years, according to preliminary estimates. 

The culprit, the data show, is China, which has kept Its emissions in check in 

recent years but now shows a massive rise in pollution. Under the Paris pact, 

China agreed to cap its emissions by 2030, meaning it Is still free to increase 

pollution. 

China's uptick this year, after a 1 percent drop in 2015 and flat emissions fast 

year, is largely a result of the country's increased use of fossil fuels. 

More broadly, researchers say, the data show the Paris agreement is not 

working as intended. 

"Global commitments made In Paris in 2015 to reduce emissions are still not 

being matched by actions," said Glen Peters, a research director at Cicero's 

Center for International Climate Research. 

"It is far too early to proclaim that we have turned a corner and started the 

journey toward zero emissions. While emissions may rise 2 percent in 2017, it 

is not possible to say whether this is a return to growth or a one-off 

increase," said Mr. Peters, who led one of the reports that was included in the 

sweeping Global Carbon Project study. 

Chinese emissions are projected to rise by 3.5 percent this year, according to 

the study. China is the world's largest polluter and accounts for nearly 30 

percent of all worldwide carbon emissions. 

https://www.washingtontimes.com/news/20 17/nov/13/global-emissions-2-pct-despite-us-... 11/15/2017 
5 


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Paris deal failing? Global emissions up 2% despite U.S. drop; Chinese pollution skyrocke... Page 3 of 4 

India's emissions also are expected to rise by 2 percent, though that is a 

much smaller increase than in recent years. 

U.S. emissions, by contrast, are projected to decline by 0.4 percent this year. 

That is less of a decline than in recent years, research shows. but still 

underscores that technological advancements and a market shift away from 

coal in America are having tangible effects. 

European emissions also are expected to decline slightly this year. 

The news doesn't necessarily mean China is falling short of its promises 

because the nation has to do virtually nothing before 2030. But it's still a 

troubling sign that highlights long-standing complaints about the climate 

accord, mainly that it penalizes the U.S. in the short term and allows China to 

keep polluting. 

The Paris deal required the U.S. to cut its emissions by at least 26 p.ercent by 

2025 when compared with 20051evels. Mr. Trump shelved that commitment 

in june, saying the agreement was unfair to the U.S. and let other major 

polluters- specifically China and India- off the hook. 

The data released Monday appear to back up his contention. 

Meanwhile, the U.S. has become something of an International pariah at the 

Germany summit even though its emissions remain on a downward 

trajectory. 

U.S. officials on Monday held an event focused on cleaner fossil fuels and 

nuclear power, and how those traditional power sources can help mitigate 

damage to the climate. 

But the forum reportedly was interrupted by dozens of protesters who 

chanted, "You claim to be an American, but we see right through your greed." 

David Banks, a special assistant to Mr. Trump on environmental issues, said 

the event could be considered controversial only "if we choose to bury our 

heads in the sand" about the need for clean fossil fuels, Reuters reported. 

https:/lwww.washingtontimes.com/news/2017/nov/13/global-emissions-2-pct-despite-us-... 1111512017 
6 


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Paris deal failing? Global emissions up 2% despite U.S. drop; Chinese pollution skyrocke... Page 4 of 4 

Nevertheless, environmentalists largely ignored the findings that U.S. 

emissions are headed down while China is fueling a worldwide increase. 

Instead, they hammered the administration for even bringing up the notion 

of continued fossil fuel use. 

"Nothing could encapsulate the extreme tone-deafness and isolation of this 

administration more than an event to celebrate fossil fuels during this 

important global climate meeting," said john Coequyt, global climate policy 

director at the Sierra Club, one of the world's leading environmental groups. 

As for emissions, researchers suggest the data show that the reality of 

controlling pollution is far different from the promises any country makes 

under the Paris accord. For example, China's economic growth this year has 

fueled the need for more energy, and the country is relying on fossil fuels to 

meet that need despite its promises under Paris. 

Emissions increases could continue in the coming years without aggressive 

action, analysts said. 

"The slowdown in emissions growth from 2014 to 2016 was always a delicate 

balance, and the likely 2 percent increase in 2017 clearly demonstrates that 

we cant take the recent sloWdown for granted; said Robbie Andrew, a senior 

researcher at Cicero who also co-authored the studies. 

Highlights of the report can be found here. 

https://www.washingtontimes.com/news/2017/nov/13/global-emissions-2-pct-despite-us-... 11!15/20 17 
7 

Senator BARRASSO. The article explains that U.S. greenhouse gas 

emissions are projected to decline this year. Meanwhile, greenhouse 

gas emissions in China and India—signatories to the Paris Agreement—are projected to increase. 

Today we will also hear about how other policies are hindering 

the private sector’s ability to innovate to the point where industry 

is abandoning investments in technologies to make environmental 

improvements. For example, New Source Review requirements 

under the Clean Air Act are discouraging businesses from retrofitting their existing facilities with equipment that would reduce 

emissions, as well as from making operational changes that would 

be more efficient. 

President Trump has demonstrated a commitment to reducing 

these barriers to American businesses through his Executive Order 

promoting American energy independence and a Presidential moratorium on reducing the regulatory barriers that domestic manufacturers face. 

Today, I look forward to examining how we can provide American businesses the space to do what they do best, solve problems 

through innovative solutions. 

I now turn to Ranking Member Carper, my friend and colleague 

on this Committee. 

OPENING STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. Thank you, Mr. Chairman. 

To our witnesses, welcome. I told the Chairman this morning I 

was excited about today’s hearing. This is one of those days and 

one of those issues around which I thought there would be a whole 

lot of consensus and agreement, and I am tempted to just go point 

by point to rebut half the things that he just said, but I don’t want 

to rain on the parade. This is going to be a great hearing, and we 

are delighted that you are here, and thrilled with the idea of putting a spotlight on the idea that we can have cleaner air, cleaner 

environment, cleaner water, and at the same time create jobs and 

have economic growth. They are not incompatible. In fact, they are 

most interdependent. So we will leave it at that. But we are grateful that you are all here. 

It was Abraham Lincoln who famously said that the role of government is to do for the people what they cannot do for themselves. 

The role of government is to do for the people what they cannot do 

for themselves. And I think one of the most important jobs that the 

government has is to help create a nurturing environment for job 

creation and job preservation. People like us—Presidents, Governors, mayors—we don’t create jobs. What we help to do, with the 

help of a lot of other folks and a lot of key stakeholders, is we help 

create a nurturing environment for job creation, job preservation. 

We also have an obligation in the Government to protect our 

health, the health of our public, to ensure that all Americans can 

pursue life, liberty, and the pursuit of happiness. Luckily, the two 

are not mutually exclusive. In fact, history shows that cleaner air 

is also good for business. 

Today, our country is undergoing a clean energy revolution, and 

that did not happen by accident. Over the past 8 years, starting 

8 

with the Recovery Act, the Federal Government has provided economic incentives, environmental targets in the supported market to 

develop investment in the clean energy of the future. This carrot 

and stick approach resulted in more than $507 billion of investment in the clean energy sector over the last decade and in our 

country’s becoming a leader in exporting clean air and clean energy 

technologies. Thanks to these investments, consumers are paying 

less for energy, jobs are being created here at home to keep up with 

the demand for the products that these technologies enable. In 

2016 alone, 1 out of every 50 new jobs added in the United States 

was created by the solar energy industry. 

Today, we are going to hear from one of our witnesses about a 

particular manufacturing sector that has reaped the benefits of the 

past actions of our Federal Government, the automobile industry. 

I would like to remind my colleagues how this sector has changed 

over the past decade. It is a story near and dear to my own heart, 

and I think a perfect example of how American innovation and economic opportunities can be driven by Federal investments and regulations, common sense regulations. 

Despite decades of Federal Government funding for advancements in automobile fuel efficiency technology, it wasn’t until after 

Congress increased fuel economy standards in 2007 that consumers 

really started to see the benefits. The 2007 compromise crafted by 

our colleagues, including former Senators Ted Stevens, Dianne 

Feinstein, Ed Markey, who is in and out of here today, and myself 

increased the fuel efficiency standards for cars and trucks and vans 

for the first time in 32 years. The 2007 light-duty vehicle efficiency 

targets were replaced by tighter efficiency targets and greenhouse 

gas emission limits in 2010, and again in 2012, with the support 

of major automobile, labor, environmental, health groups, and consumer groups. The results have been remarkable. You don’t have 

to believe me; the numbers prove it. 

Taken together, these car and light-duty truck standards are projected to almost double the fuel economy of cars and light duty 

trucks to 54.5 miles per gallon by 2025. These standards are reducing the amount of oil we import by 2 million barrels per day and 

will save American drivers nearly $1.7 trillion in gasoline costs 

that they will no longer have to buy. 

In even better news, these regulations have not been the job killer that many would have us believe. In fact, they have been quite 

the opposite. Automakers found that making more energy efficient 

vehicles allowed American companies to better compete not just 

here at home, but overseas as well. Early implementation of these 

standards occurred during 7 years of unprecedented growth in the 

auto industry and record sales last year, in 2016. The industry has 

also added roughly 700,000 direct auto sector jobs since 2009. 

It is clear that we have made great gains in reducing emissions 

in our transportation and energy sectors over the past 8 years, 

while still growing our economy. We have been doing something 

right. And although our air is cleaner today and our economy is 

strong, we still need to do more to protect public health and ensure 

that America remains a leader in the global economy. 

Having said that, I fear that this Administration is taking us in 

the wrong direction in this arena walking away from the Paris AcVerDate Aug 31 2005 10:16 Jan 24, 2018 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\28078.TXT SONYA
9 

cord agreement, leaving the U.S. as the only country in the entire 

world that is not part of this historic agreement. And walking away 

from other climate and air protections is, I think, beyond irresponsible. And saying that you have to do so for the good of the American economy is just blatantly false. In fact, scrapping forward 

looking standards will only provide more uncertainty for businesses 

and threaten to stifle American innovation. 

For me it is clear. This is not an either/or situation. In order for 

the United States to continue to be the world’s leader in this new 

clean energy revolution, and we need to be, we need both Federal 

investment in technology and common sense regulations. 

So, thanks, Mr. Chairman, for holding this important hearing. 

We are delighted that our witnesses are here. We look forward 

to a robust conversation with you all. Thank you. 

[The prepared statement of Senator Carper follows:] 

STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE

I would like to thank the Chairman for having this hearing today. I believe that 

improving the understanding and celebrating the role that technological innovation 

plays in helping the country meet our clean air and climate challenges are very important, and I hope we can have more hearings like this. I also thank our witnesses 

for being here today. 

Abraham Lincoln famously said that the role of government is to do for the people 

what they cannot do for themselves. 

One of those tasks, I believe, is for government to help create a nurturing environment for job creation and job preservation. Our government also has an obligation 

to help protect the health of the public to ensure that all Americans can pursue life, 

liberty, and happiness. 

Luckily, the two are not mutually exclusive. In fact, history shows that cleaner 

air is good for business. 

Today our country is undergoing a clean energy revolution. That didn’t happen 

by accident. Over the past 8 years, starting with the Recovery Act, the Federal Government has provided economic incentives, environmental targets, and has supported market development to encourage investments in the clean energy of the future. 

This carrot and stick approach resulted in more than $507 billion of investment 

in the clean energy sector over the last decade and in our country’s becoming a leader in exporting clean air and clean energy technologies. 

Thanks to our investments, consumers are paying less for energy, and jobs are 

being created here at home to keep up with the demand for the products that these 

technologies enable. In 2016 alone 1 out of every 50 new jobs added in the United 

States was created by the solar energy industry. 

Today we will hear from one of our witnesses about a particular manufacturing 

sector that has reaped the benefits of the past actions of the Federal Government— 

the automobile industry. I’d like to remind my colleagues how this sector has 

changed over the past decade. It’s a story near and dear to my heart and I think 

a perfect example of how American innovation and economic opportunities can be 

driven by Federal investments AND regulations. 

Despite decades of Federal Government funding for advancements in automobile 

fuel efficiency technology, it wasn’t until after Congress increased fuel economy 

standards in 2007 that consumers really started to see the benefits. The 2007 compromise crafted by my colleagues—former Senator Stevens, Senator Feinstein, thenCongressman Markey—and I increased the fuel efficiency standards for cars, trucks, 

and vans for the first time in 32 years. 

The 2007 light-duty vehicle efficiency targets were replaced by tighter efficiency 

targets and greenhouse gas emissions limits in 2010 and again in 2012, with the 

support of the major automakers, labor, environmental, and health groups, and consumer groups. 

The results have been remarkable, but you don’t have to believe me—the numbers 

prove it. 

Taken together, these car and light-duty truck standards are projected to almost 

double the fuel economy of cars and light-duty trucks to 54.5 miles per gallon by 

10 

2025. These standards are reducing the amount of oil we import by 2 million barrels 

per day and will save American drivers nearly $1.7 trillion in gasoline they will no 

longer have to buy. 

In even better news, these regulations have not been the job killers that many 

would have you believe. In fact, they have been quite the opposite. 

Automakers found that making more fuel efficient vehicles allowed American companies to better compete here at home and abroad. 

Early implementation of these standards occurred during 7 years of unprecedented growth in the auto industry and record sales in 2016. The industry has also 

added roughly 700,000 direct auto sector jobs since 2009. 

It’s clear we’ve made great gains in reducing emissions in our transportation and 

energy sectors over the past 8 years while still growing our economy. We’ve been 

doing something right. And although our air is cleaner today and our economy is 

strong, we still need to do more to protect public health and ensure that America 

remains a leader in the global economy. 

Having said that, I fear this Administration is taking us in the wrong direction 

in this arena. 

Walking away from the Paris Climate Agreement—leaving the U.S. the only country in the entire world not part of this historic deal—and walking away from other 

climate and clean air protections are beyond irresponsible. And saying that you have 

to do so for the good of the American economy is blatantly false. In fact, scrapping 

forward looking standards will only provide more uncertainty for businesses and 

threaten to stifle American innovation. 

For me, it is clear—this is not an either/or situation. In order for the United 

States to continue to be the world’s leader in this new clean energy revolution, we 

need both Federal investments in technology AND common sense regulations. 

Thank you again to the Chairman for holding this important hearing. I look forward to hearing from our witnesses their ideas on how we can do that. 

Senator BARRASSO. Well, thank you, Senator Carper. 

We will now hear from our witnesses, but before we turn to Kipp 

Coddington, let me first say a few words about him. 

Mr. Coddington has a distinguished career as a chemical engineer and as an attorney. He has more than two decades of experience in helping fossil and renewable energy companies address 

some of their most challenging energy and environmental issues. 

At the University of Wyoming, Mr. Coddington oversees the Carbon 

Management Institute, which is striving to become a world class 

center of technoeconomic and carbon management solutions by conducting applied research. 

In addition to his duties at the University of Wyoming, Mr. 

Coddington is the former chair of the International Organization 

for Standardizations Committee that is in the process of drafting 

the first international technical standard for storage of carbon dioxide during enhanced oil recovery operations. 

Before moving to my home State of Wyoming, Mr. Coddington 

practiced law here in Washington, DC, and I am pleased that he 

now calls the great State of Wyoming home. 

In addition to Mr. Coddington, we have Mr. Ross Eisenberg, who 

is Vice President of Energy and Resources Policy for the National 

Association of Manufacturers. 

And also joining is today is Zoe Lipman, who is the Director of 

Vehicles and Advanced Transportation Program, the BlueGreen Alliance. 

I want to remind the witnesses that your full written testimony 

will be made part of the official hearing record today, so please 

keep your statements to 5 minutes so that we may have time for 

questions. I look forward to your testimony. 

11 

I would recommend, also, and remind you that your full written 

testimony will be made part of the official hearing today, so please 

keep your statements to 5 minutes. 

Mr. Coddington, please begin. 

STATEMENT OF KIPP CODDINGTON, DIRECTOR, CARBON MANAGEMENT INSTITUTE, SCHOOL OF ENERGY RESOURCES, 

UNIVERSITY OF WYOMING 

Mr. CODDINGTON. Mr. Chairman and Senators, thank you for the 

opportunity to appear before you today to discuss research at the 

University of Wyoming related to reducing air emissions through 

the development of new technologies and efficient practices in manufacturing and energy production and use. I am the Director of Energy Policy and Economics at the School of Energy Resources at 

UW and also direct the Carbon Management Institute, which is 

one of SER’s Centers of Excellence. 

All the projects and research areas noted in my testimony are 

important so that the United States remains a leader in using its 

abundant energy resources with reduced impacts to air quality. 

These air issues also are important to Wyoming, which is one of 

the nation’s leading energy jurisdictions. According to the U.S. Energy Information Administration data for 2015, first, Wyoming produced 42 percent of all coal mined in the United States; second, 32 

States received coal from Wyoming mines, with 10 States, including Wyoming, obtaining more than 90 percent of their domestic 

coal from Wyoming; third, Wyoming accounted for 6.2 percent of 

U.S. marketed natural gas production; and fourth, almost 88 percent of net electricity generation in Wyoming came from coal, and 

nearly 11 percent came from renewable energy resources, primarily 

wind. 

Sitting in the Rocky Mountain west, Wyoming energy resources 

face a variety of environmental challenges and opportunities, from 

the State of California’s enduring air and climate regulatory programs to fuel choices by Wyoming customers of Wyoming energy. 

My written testimony provides a broad overview of UW’s research, divided into the following topical areas: first, reducing atmospheric emissions of greenhouse gases and other constituents associated with the combustion of fossil fuels; second, utilizing carbon 

dioxide once it is combusted from the utilization of fossil fuels; and 

third, not creating emissions in the first instance, which would include, for example, taking coal directly to beneficial products instead of combusting it for electricity. 

My written remarks conclude with some brief observations about 

our policy work and ongoing engagements with regional stakeholders, such as Idaho National Lab. 

With respect to topic area No. 1, reducing emissions from the 

combustion of fossil fuels, UW is working on numerous technologies, such as flameless pressurized oxyfuel combustion, coal firing coal with biomass, and measurements of methane and volatile 

organic compound emissions from oil and gas operations. 

With respect to topic area two, utilizing carbon dioxide once it is 

produced from the combustion of fossil fuels, the State of Wyoming 

is an ideal jurisdiction to advance research and projects related to 

capturing and utilizing emissions of carbon dioxide. For example, 

12 

led by the Wyoming Infrastructure Authority and with the support 

of many private and public sector entities in Wyoming, the Gillette 

based Integrated Test Center will soon serve as an operational test 

site for CO2 capture technology developers and providers to evaluate carbon capture utilization and storage technologies using actual 

fuel gas from a coal fired power plant. The ITC is also hosting the 

coal track of the $20 million NRG COSIA Carbon XPRIZE, a global 

competition to develop breakthrough technologies that convert CO2

emissions from fossil fuel combustion into products with the highest net value. 

It is also worth noting that Wyoming is one of only a handful of 

States with existing CO2 pipeline infrastructure, with ongoing efforts to expand the same under the Wyoming Pipeline Corridor Initiative. Wyoming also has an existing CO2 enhanced oil recovery 

industry and has enacted laws to encourage the environmentally 

responsible siting and operation of CCUS-related projects in the 

State. 

My written testimony provides more details about the abundant 

work we are doing in the area of CO2 utilization. 

Third, the third research area I wanted to cover is advancing the 

utilization of coal in a non-combustion environment. UW is alone 

in developing and advancing novel and innovative technologies related to the extraction and production of valuable non-Btu products 

from coal. The primary focus of this research is to advance coal utilization as a feedstock to manufacture and generate valuable nonBtu coal related products such as carbon fiber and carbon rich 

chemicals, agricultural and building products. And some of these 

products, for example, graphite and carbon fiber, are predicted to 

be in short supply as the demand for lightweight materials, renewable energy, and the like grows in the years ahead. 

Our work on rare Earth elements is also expanding. UW researchers, in collaboration with colleagues on campus and throughout the region, are separately investigating the identification, characterization, and separation of REEs from coal, coal by-products, 

and produced waters. Expansion of domestic sources of REEs remains a high priority for policymakers. 

This concludes my verbal testimony. I commend the Committee 

for addressing the issue of the role that innovative technologies are 

playing in reducing air emissions. UW is doing its best to advance 

frontiers of these research areas for the benefit of a variety of 

stakeholders. The ongoing Federal role in supporting these research endeavors is imperative. 

I would be pleased to answer any questions that you may have. 

Thank you. 

[The prepared statement of Mr. Coddington follows:] 

13 


28078.005

Kipp Coddington 

Director of Carbon Management institute 

University of Wyoming 

Coddington is the Director of the Carbon Management Institute at the 

School of Energy Resources, University of Wyoming. A chemical 

engineer and lawyer, Coddington has more than two decades of experience 

in helping fossil and renewable energy companies address some oftheir 

most challenging energy, environmental, and climate change issues. 

Coddington chairs the International Organization for Standardization's (ISO) committee that is 

drafting the first international technical standard for storage of carbon dioxide (C02) during 

enhanced hydrocarbon recovery operations. He has: (l) testified before the U.S. Senate 

Committee on Energy and Natural Resources; (2) advised the State of California; and (3) advised 

the Interstate Oil & Gas Compact Commission. 

Coddington is listed in Chambers Global/Climate Change; Chambers USA/Nationwide-Climate 

Change; Chambers USA/District of Columbia-Environment; International Who's Who of 

Environmental Lawyers; and International Who's Who of Business He has a B.S. in 

Chemical Engineering from Purdue University ( 1986; With Highest Outstanding 

Senior Engineer) and a Juris Doctor from Georgetown University (!993; Magna Cum Laude; 

Order of the Coif). 
14 


28078.006

STATEMENT OF KIPP CODDINGTON, ESQ. 

DIRECTOR, ENERGY POLICY & ECONOMICS 

at the 

SCHOOL OF ENERGY RESOURCES, UNIVERSITY OF WYOMING 

before the 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

concerning 

"PROMOTING AMERICAN LEADERSHIP IN REDUCING AIR EMISSIONS 

THROUGH INNOVATION" 

NOVEMBER 15, 2017 
15 


28078.007

Introduction 

Mr. Chairman and Members of the Committee, thank you for the opportunity to appear 

before you today to discuss research at the University of Wyoming (UW) related to reducing air 

emissions through the development of new technologies and efficient practices in manufacturing 

and energy production and use. I am the Director of Energy Policy & Economics at the School of 

Energy Resources (SER) at UW, and also direct the Carbon Management Institute, which is one 

ofSER's Centers ofExcellence. 

All ofthe projects and research areas noted in my testimony are important so that the United 

States remains a leader in using its abundant energy resources with reduced impacts to air 

quality. These air issues also are important for Wyoming, which is one of the Nation's leading 

energy jurisdictions. According to U.S. Energy Information Administration (EIA) data for 2015 1: 

..r Wyoming produced 42% of all coal mined in the United States . 

..r Thirty-two (32) states received coal from Wyoming mines, with ten (10) states, including 

Wyoming, obtaining more than 90% of their domestic coal from Wyoming . 

..r Wyoming accounted for 6.2% of U.S. marketed natural gas production . 

..r Almost 88% of net electricity generation in Wyoming came from coal and nearly 11% 

came from renewable energy resources, primarily wind. 

Sitting in the Rocky Mountain west, Wyoming energy resources face a variety of environmental 

challenges and opportunities, from the State of California's enduring air and climate regulatory 

programs to fuel choices by customers of Wyoming energy, whether in the State or elsewhere. 

1 Source: "Wyoming, State Profile and Energy Estimates" (EIA, updated December 15, 2016) 

(available at https://mvw.eia.gov/state/?sid=WY). 

2 
16 


28078.008

Testimony 

My testimony provides a very broad overview ofUW's research, divided into the following 

topical areas: (1) first, reducing atmospheric emissions of greenhouses (GHGs) and criteria 

constituents associated with the combustion and/or production offossil fuels; (2) second, 

managing, capturing and utilizing carbon dioxide (C02) atmospheric emissions from the 

combustion of fossil fuels; and (3) third, understanding the decomposition behavior of coal and 

how coal molecules can be deliberately reconfigured to make valuable carbon-rich products 

which support other industries, including chemicals, building construction, agriculture and 

energy storage. I conclude with some brief remarks about our policy work and ongoing 

engagements with regional stakeholders in the western Rocky Mountain and Great Plains 

regions. 

Topic Area #1: Reducing Anthropogenic Emissions 

UW has several research programs underway related to the development of novel technologies to 

reduce atmospheric emissions of anthropogenic GHGs and criteria constituents, including the 

following: 

./ Flameless Pressurized Oxy-Fuel Combustion 

This technology, which involves the combustion of coal at elevated pressure in a highly 

preheated stream of oxygen that is diluted with both C02 and water, has the goal of: 

(1) recovering energy from low-rank coal and other brown fuels; (2) enabling C02 recovery on 

an economically viable basis; and (3) minimizing emissions of nitrous oxides, particulates and 

heavy metals. 

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28078.009

./ Co-Firing Coal With Biomass 

UW conducts extensive research on co-utilization of biomass with coal for reduced emissions in 

combustion, gasification and pyrolysis. Our research focuses on near-term substitution in 

existing power plants, as well as long-term advanced conversion technologies . 

./ Biomass for Sustainable Food, Energy and Water Resource Development 

UW research focuses on novel bio-resource materials for sustainable food, energy and water 

resource development. Research tasks here include: (1) production of fuels and biochar from 

biomass materials; (2) enhancement ofbiochar quality through photochemical and ultrasonic 

chemistry and functionalization; and (3) application offunctionalized and photochemical and 

ultrasonic chemistry-enhanced biochar for C02 capture, water treatment and food production . 

./ Measurements of Methane and Volatile Organic Compound (VOCs) Emissions from Oil 

& Gas Operations 

Flux estimates of methane and VOCs made by the UW Center for Air Quality, while technically 

challenging, are essential for operators to understand what their true emissions are and how close 

they are to inventory estimates. Utilizing flux measurements to improve inventories is essential 

in developing functional photo-chemical models that can replicate the impacts of oil & gas 

operations on air quality, especially wintertime ozone. Having functional models is a critical way 

that operators can make good decisions about the most effective and economical ways to 

minimize air quality impacts from the expansion of energy production. 

And we are pushing the science in terms of directly measuring VOC fluxes. UW is one of only a 

handful of institutions of higher education in the United States that flies its own aircraft for 

atmospheric research. 

4 
18 


28078.010

On a related front, the Casper-based Enhanced Oil Recovery Institute assists Wyoming operators 

with the engineering and sourcing of new technologies that facilitate economic reductions in 

methane emissions. 

Topic Area #2: Capturing and Utilizing Atmospheric Emissions of COz 

The State of Wyoming is an ideal jurisdiction to advance research and projects related to 

capturing and utilizing emissions ofCOz. For example, led by the Wyoming Infrastructure 

Authority and with the support of many private- and public-sector entities in Wyoming, the 

Gillette-based Integrated Test Center (lTC) will soon serve as an operational test site for C02 

capture technology developers and providers to evaluate carbon capture utilization and storage 

(CCUS) technologies using actual coal-based fuel gas equivalent to a 20 MW generation load. 

The lTC is also hosting the coal-track of the $20M NRG COS lA Carbon XPRIZE, a global 

competition to develop breakthrough technologies that convert COz emissions from fossil-fuel 

combustion into products with the highest net value, such as enhanced concrete, biofuels, 

nanotubes and fertilizers. Wyoming is one of a handful of states with existing C02 pipeline 

infrastructure, with ongoing efforts to expand the same under the Wyoming Pipeline Corridor 

Initiative. Wyoming also has an existing COz-enhanced oil recovery (COz-EOR) industry and 

has enacted laws to encourage the environmentally responsible siting and operation of CCUSrelated projects in the State. 

UW has several research programs underway in this field, too, including the following: 

,; U.S. Department of Energy's DOE's Carbon Storage Assurance and Facilitv Enterprise 

(CarbonSAFE) Program 

Relying upon interdisciplinary public- and private-sector teams with expertise in commercial 

project development, non-EOR geologic storage (e.g., saline formations), COz-EOR, law and 

5 
19 


28078.011

project finance, we are advancing two project sites in Wyoming under Phase I of DOE's 

CarbonSAFE program, a federally supported endeavor to hopefully site one or more large-scale 

integrated CCUS facilities throughout the United States by the 2025 time frame. We are honored 

to be working with our utility partners in these endeavors, both of whom continue to do 

yeoman's work to advance CCUS: (1) PacifiCorp/Rocky Mountain Power; and (2) Basin Electric 

Power Cooperative. These efforts build upon UW' s prior CCUS work under the Wyoming 

Carbon Underground Storage Project, a pioneering three-year research project that characterized 

two potential C02 storage reservoirs (the Weber Sandstone and Madison Limestone) on the Rock 

Springs Uplift in the southwestern comer of the State. 

"(' U.S.-China Clean Energy Research Center CCERC) 

In conjunction with colleagues at West Virginia University, University of Kentucky and 

elsewhere, UW is pleased to play an integral role in DOE's CERC program. CERC is a multiyear DOE effort to foster collaborative research and development of CCUS and clean coal 

technologies between the U.S. and China. 

"(' COz Capture Technologies 

UW researchers continue to advance a variety of C02 capture technologies including the novel 

use of catalysts that augments conventional gasification and chemical looping solutions. 

"(' CCUS-Based Biofuels 

In collaboration with colleagues at Montana State University, the University of South Dakota 

and elsewhere, UW is part of the recently announced four-year National Science Foundation 

initiative to determine if changes in commodity production and capturing C02 are sustainable, or 

even feasible, in the Upper Missouri River Basin. 

6 
20 


28078.012

Topic Area #3: Advancing Applied Research Related to Non-Btu Markets for Coal and 

Coal By-Products 

UW is alone in developing and advancing novel and innovative technologies related to the 

extraction and production of valuable non-Btu products from coal. The primary focus of this 

research is to advance coal utilization as a feedstock to manufacture and generate valuable nonBtu coal-related products, such as carbon fiber and carbon-rich chemicals, agricultural and 

building products. The manufacture of some of these coal-based products has the potential to be 

deployed as a pre-treatment before coal is com busted to offset the typically high costs associated 

with post-combustion carbon capture solutions. And some ofthese products- e.g., graphite and 

carbon fiber-- are predicted to be in short supply as the demand for lightweight materials, 

renewable energy and the like grows in the years ahead. 

Our work on Rare Earth Elements (REE's) is also expanding. UW researchers in collaboration 

with colleagues on campus and throughout the region- are separately investigating the 

identification, characterization and separation ofREE's from coal, coal by-products and 

produced waters. Expansion of domestic sources ofREE's remains a high priority for 

policymakers. 

Some Closing Remarks about UW's Energy Policy Work and Regional Collaborations 

UW's innovative work extends beyond the lab bench to the policy realm. Most recently, UW: 

(l) played a leading role in the 2016 report by the National Coal Council regarding geologic and 

non-geologic technologies that hold promise to utilize COz as a feedstock for products; and 

(2) published an interdisciplinary analysis of the impact of the social cost of carbon in the 

development of energy projects on federal lands. 

7 
21 


28078.013

A brief note about regional collaborations: Over the years and continuing, UW researchers in 

these and related areas have benefited from a variety of regional relationships, from Idaho 

National Laboratory (INL), including the Center for Advanced Energy Studies, to the Energy & 

Environmental Research Center at the University of North Dakota. 

Conclusion 

This concludes my testimony. I commend the Committee for addressing the issue of the role that 

innovative technologies are playing in reducing air emissions. UW is doing its best to advance 

the frontiers ofthese research areas for the benefit of a variety of stakeholders. The ongoing 

federal role in supporting these research endeavors is imperative. Mr. Chairman and Members of 

the Committee. I would be pleased to answer any questions that you may have. 

8 
22 


28078.014

UNIVERSITY 

OF WYOMING 

School of Energy Resources- Carbon Management Institute 

Department 3012 • 1000 E. University Ave. • laramie, WY 82071-2000 

[3071 766-6731 • fax (307) 766-6078 

MEMORANDUM 

TO: 

FROM: 

Chairman John Barrasso, M.D. 

Senate Committee on Environment and Public Works 

Ranking Member Thomas R. Carper 

Senate Committee on Environment and Public Works 

Kipp Coddington, Esq. 

Director, Energy Policy & Economics 

School of Energy Resources 

University of Wyoming 

December 14,2017 

RE: Responses to Questions for the Record for Kipp Coddington as Follow-Up 

to the November 15, 2017 Hearing Entitled "Promoting American 

Leadership in Reducing Air Emissions Through Innovation" 

This memorandum addresses the referenced questions set forth in your letter 

dated November 30, 2017. 

Questions from Senator Barrasso: 

1. In your testimony, you highlighted the University of Wyoming's numerous 

partnerships with the federal government, industry, and other entities. U!hat could 

Congress do to facilitate greater collaboration and maximize the efficacy of 

research funding at the University of Wyoming and elsewhere? 

The greatest need in this arena is more funding for advancing technologies through U.S. 

Department of Energy (DOE) Technology Readiness Levels 5 through 9 (inclusive), 

especially demonstration at scale. Federal agencies do an admirable job of funding basic 

R&D, but many promising technologies fail to advance due to lack of funding for scaleup in the field - i.e., the processes that lead to commercialization. Further, the number 

of demonstrations of different technology options funded is far too low. 
23 


28078.015

2. Based on the University of Wyoming's participation in the U.S. -China Clean 

Energy Research Center (CERC) and any other related efforts, do you believe 

that the U.S. is currently a leader in the carbon capture utilization and 

sequestration field? How does the U.S. maintain leadership moving forward? 

The U.S. is among the world's leaders in developing technology approaches to carbon 

dioxide (C02) capture and utilization (CCUS) technologies, particularly with respect to 

the subsurface storage of C02 in saline reservoirs and the utilization of C02 for enhanced 

oil recovery (C02-EOR). Indeed, the U.S. leads the world on C02-EOR technologies and 

commercial operations, with states such as Texas and Wyoming in the vanguard. 

We are gaining in the newer areas of C02 utilization for non-geologic applications, but I 

cannot state with certainty that we are among the international leaders in this area. The 

National Coal Council, in its 2016 study "C02 Building Blocks: Assessing C02 

Utilization Options" with the University of Wyoming (UW) as the study chair, looked at 

this topic and concluded in part-- and with consideration of both geologic and nongeologic markets-- that "C02-EOR currently [remains] the most immediate, highest 

value opportunity to utilize the greatest volumes of anthropogenic C02, with the greatest 

near-term potential to incentivize CCUS deployment"1 

The entire enterprise of CCUS requires funding and industry partners operating largescale combustion equipment for demonstrations to move forward. The U.S. can only 

maintain a leadership position by demonstrating the efficacy of our technologies at scale. 

The Wyoming Integrated Test Center is one such effort, but more is needed. 

3. Do you see an international market potentially developing for products and 

technologies that the University of Wyoming School of Energy Resources is 

researching, such as carbon capture technologies and non-Btu uses of coal and 

coal by-products? 

Worldwide demand for lower greenhouse gas (GHG) emitting technologies and products 

is almost certainly going to continue to increase in the future for a variety of market, 

legal, regulatory and policy reasons. At the R&D and applied research levels, we 

continue to see growing interest among international colleagues with respect to UW's 

work on CCUS and related technologies. 

With respect to non-Btu uses of coal and coal by-products, such technologies are 

generally developed to take advantage of a particular coal. In the case of Wyoming coals 

being researched at UW, it is likely that successfully developed coal-to-non-Btu product 

technologies will be bundled with Wyoming coal sales. Target markets are Japan, India, 

Taiwan and China. 

1 See generally, National Coal Council. "C02 Building Blocks: Assessing C02 Utilization 

Options." (20 16) (available at h!m_://w~?{,ll1!!ionalco_1!l~Q!!!lcil.g~tggi_esLZQJ §(1\LCi:: C02-Building-Block_-FINAL-~ort.pdf1 

2 
24 


28078.016

4. An important use of carbon dioxide is in enhanced oil recove1y (EOR) operations. 

Given your leadership at the Carbon Management Institute, you have expertise in 

studying the fate of carbon dioxide that is stored underground. Can you describe 

past or ongoing research at the University of Wyoming to demonstrate that the 

carbon dioxide used for EOR or injected for some other purpose stays in the 

ground over time? How do we make sure that policies governing carbon 

sequestration and storage are formed by the best available science? 

UW has a world-leading experimental and computational research capability for reservoir 

characterization and flow through porous media. One mature area of research being 

carried out in that program addresses the oil production benefits and fate of C02 that has 

been injected into reservoirs for C02-EOR and the associated storage of C02 that occurs 

as part of that process. UW's work has resulted in a number of publications that are 

among the most frequently cited in renowned scientific journals. Briefly, UW's work 

shows that many reservoir types result in the permanent trapping of a significant volume 

ofthe injected C02 in pore spaces. The amount trapped in this manner varies by 

reservoir, but we believe such studies provide many benefits such as reducing the costs of 

storage and making more efficient (but not necessarily eliminating) the need for 

monitoring, verifying and accounting for the stored C02. Cutting-edge research into the 

interactions at the pore space (e.g., micro) and atomic (e.g., nano) levels is currently 

being conducted at UW's High Bay Research Facility under the leadership of 

Dr. Mohammad Piri and a large team of researchers. 

Over the past decade, UW- led by the Carbon Management Institute (CMI) with the 

participation of colleagues on campus, national labs and industry partners, and with the 

support of DOE and the State of Wyoming has researched the geologic attributes of 

C02 storage in many reservoirs. We have applied and advanced- and continue to apply 

and advance- the best available science in these projects. 

The Wyoming Carbon Underground Storage Project (WY -CUSP), for example, 

concluded that two reservoirs (the Weber Sandstone and Madison Limestone, both deep 

saline forn1ations) on the Rock Springs Uplift in southwestern Wyoming could safely 

store billions of tons of C02 thousands of feet underground. 

In conjunction with colleagues at West Virginia University, the University of Kentucky 

and elsewhere under the DOE-funded U.S.-China Clean Energy Research Center, we are 

working to assess C02 storage in association with C02-EOR operations in China's Ordos 

Basin. It is anticipated that lessons learned from this ongoing research will be broadly 

applicable in the United States. 

Under Phase I of DOE's Brine Extraction & Storage Test (BEST) program, we conducted 

desk-top studies related to brine withdrawal to manage reservoir pressure as part of 

CCUS operations while examining the potential benet!cial use of produced brine. 

UW-led research on other CCUS-related projects is underway in Wyoming. 

3 
25 


28078.017

Separately, CMI and the Casper-based Enhanced Oil Recovery Institute (EORI) concur 

that the critical importance of C02-EOR to carbon management policy, coupled with the 

growing application ofGHG lifecycle analysis (LCA) to C02-EOR, suggest that it is 

important for policymakers and technologists to be armed with the most current data on 

C~ storage in association with commercial C02-EOR operations. Current C02-EOR 

operations are achieving much higher C02 utilization values -- and assuming the widescale application of "next generation" technologies to existing and potential new resource 

targets, even larger C02 utilization values are realizable. Recent research suggest that 

"next generation" C02-EOR applied to the main pay zone of oil reservoirs uses, on 

average, about 0.45 metric tons per barrel of oil produced, while C02-EOR applied to the 

residual oil zone underlying and in between existing oil fields uses, on average, about 

0.50 metric tons per barrel of oil produced. These utilization values are over double that 

assumed in most LCA analyses applied to C02-EOR operations to date. In conjunction 

with other experts in the field, CMJ and EORI have published on this topic. 

Given the fact that most if not all C02-EOR operations have to purchase C02, operators 

treat C02 as a commodity and do all that they can to ensure that C02 in the closed-loop 

C02-EOR system stays in the system. This means that the C02 is either in the recycling 

system or stored in the reservoir. Because the storage of C02 occurs "incidentally" to the 

production of oil and gas, this type of C02 storage (e.g., occuning as part of a 

commercial C02-EOR operation) is referred to as associated storage. 

Some regulatory and liability issues are currently hindering wide-scale deployment of 

CCUS, including the recognition of C02 stored in association with C02-EOR. These and 

related issues are being examined by a global effort currently underway by the 

International Standards Organization (ISO) under !SO's Technical Committee 265 

("Carbon dioxide capture, transportation, and geological storage"). There are currently 

29 countries participating in this effort, which includes a significant focus on the 

permanent storage of C02 in association with C02-EOR operations. The U.S. Head of 

Delegation and Chair of Technical Committee 265 is the director ofEORI, Dr. Steven 

Carpenter. 

* * * 

On behalf ofUW, we would be pleased to answer any further questions that you may 

have. 

Best regan:!!!,, 

4 
26 


28078.018

Additional Resourc.§ 

Advanced Resources International & Melzer Consulting. "Optimization of C02 Storage 

in C02 Enhanced Oil Recovery Projects." Prepared for United Kingdom, Deparlmcnt of 

Energy & Climate Change (DECC), Office of Carbon Capture & Storage (20 1 0). 

Godec, M., Carpenter, S., and Coddington, K. "Evaluation of Technology and Policy 

Issues Associated with the Storage of Carbon Dioxide via Enhanced Oil Recovery in 

Determining the Potential for Carbon Negative Oil." Energy Procedia, Vol. 114 (2017): 

pp. 6563-6578 (available at 

l:J!!~{/.\Y\;\'~,ss;kll,c~girt:£1&2rni~fi~ns;eL!!I1if!e/n_ii/S_LE§§1QfJ7}12225J. 

Hill, B., Hovorka, S., Melzer, S., "Geologic Carbon Storage Through Enhanced Oil 

Recovery." Energy Procedia, Vol. 37 (2013): pp. 6808-6830 

(available at ht]Q://_\Y_\Y\'/,~fi(!Jl,f(!Qi!.t:C:t.C:QJ!l/~f!~ll,£(:/~l:!:tlc:~li!ii/§!~?661 0213008576). 

IEA/OECD. "Storing C02 through Enhanced Oil Recovery: Combining EOR with C02 

Storage (EOR+) for Profit." (2015). 

Marston, P. and Moore, P. "From EOR to CCS: The Evolving Legal and Regulatory 

Framework for Carbon Capture and Storage." Energy Law Journal, Vol. 29 (2008): pp. 

421-490 (available at h!tQ:/£t:>LC:~~,Qrlk'£.r:2m'Y.91.Qf:Qll%).Qto%20C~~lliill..: 

National Coal Council. "C02 Building Blocks: Assessing C02 Utilization Options." 

(20 16) (available at l.!!w://ww~.llil!igga_l£Qalc:Q...lJ!l.C:iL<:J.rE..~l1J.Qies/~O 1 §LNG_~::_CQl: 

~~,~i1£in£.-J?.l<:J£k:fiNA!d3 .. £Jl9Lt,rr911 

Nye, C. et seq. "Aqueous Rare Earth Element Patterns and Concentration in Thermal 

Brines Associated with Oil and Gas Production." Proceedings, 42"d Workshop on 

Geothermal Reservoir Engineering (2017) (available at 

b.t.U2~1!IL!I!J.~~!!,.~t!!..llfQIQ.eq!,!~B.R.E/db/.Q!<QCpn£1papers/SGW /20 17/N ve. ;1df). 

Surdam, R. (ed.). "Geological C02 Storage Characterization: The Key to Deploying 

Clean Fossil Energy Technology." (Springer 2013). 

"UW Seeks New Coal Uses to Boost Economy." Laramie Boomerang (December 6, 

20 17) (available at h!ill.:LLW':"W.I!!famieboomerang.com/news/local news/uw-seeks-newfQ!!l~IJ~~$-tO-bQ.Q.st:~C.QnQntY{!!fticl~ 3 5624 5 f6-da40:.LLt:7 -~§61 :7Jfedf1.b25 8a.html). 

5 
27 

Senator BARRASSO. Thank you very much for your testimony, Mr. 

Coddington. We will get to questions after we finish with the rest 

of the panel. 

Mr. Eisenberg, please proceed. 

STATEMENT OF ROSS EISENBERG, VICE PRESIDENT, 

NATIONAL ASSOCIATION OF MANUFACTURERS 

Mr. EISENBERG. Good morning, Mr. Chairman, Ranking Member 

Carper, members of the Committee. My name is Ross Eisenberg. I 

am pleased to provide testimony on the wonderful—the very good 

things that manufacturers are doing to improve emissions in this 

country and usher in a more sustainable environment. 

Through a wide range of traditional and innovative measures, 

manufacturers have sharply reduced their emissions and have 

helped usher in this new era. Since 1990 the national pollution concentrations have—it is really a remarkable thing. All the trendlines 

on pretty much every single major pollutant have gone straight 

down. Carbon monoxide concentrations are down 77 percent; lead, 

99 percent; nitrogen dioxide, 54 percent; ozone, 22 percent; coarse 

particulate matter, 39 percent; fine particulate matter, 37 percent; 

and sulfur dioxide, 81 percent. 

As you said in your opening remarks, Mr. Chairman, we have reduced more greenhouse gases than any other nation on earth. 

When you narrow this analysis to the industrial sector, you get 

similarly impressive results. Today’s manufacturing company 

would like to say it is not your father’s or even your grandfather’s 

manufacturer; it is a sleek, technology driven operation that looks 

nothing like industrial facilities of the past. And with that progress 

has come a much smaller environmental footprint. Industrial emissions of nitrogen oxide, which is a criteria pollutant and the main 

driver of ozone, they have dropped by 53 percent in the industrial 

sector since 1970. Industrial emissions of volatile organic compounds, VOCs, the other pollutant that makes up ozone, are down 

47 percent during that same timeframe. Carbon monoxide is down 

70 percent in our sector since 1970. Sulfur dioxide, 90 percent. 

Emissions of coarse particulate matter in the industrial sector are 

83 percent down since 1970; fine particulate matter, 23 percent 

since their peak in 1999. And on greenhouse gases, the industrial 

sector manufacturing actually emits less than we did in 1990. Just 

over the past decade, we have reduced our greenhouse gas emissions by 10 percent, while increasing our value of the economy by 

19 percent in that same timeframe. 

So, across the board, manufacturers are truly walking the talk. 

My written statement provides a wealth of examples that were sent 

to me by our manufacturers from companies like Olin, Xerox, 

Cummins, Johnson Controls, Owens Corning, Illinois Tool Works, 

and many others. 

My testimony highlights Covestro, which committed to reduce its 

2005 CO2 levels by 40 percent by 2020. They have already beaten 

that, so they set another target of cutting that in half by 2025. 

The ASF’s Huntsville, Alabama, facility implemented materials 

management and recycling activities that saved more than 1,500 

metric tons of VOCs and 35,000 metric tons of CO2. 

28 

Calgon Carbon, up in Pennsylvania, manufactures activated carbon products. They control mercury emissions from power plants, 

industrial boilers, and cement kilns. 

The steel manufacturer ArcelorMittal installed a $63 million energy recovery system that captures their off-gas, their blast furnace 

gas, and uses it, instead of it being wasted, to produce steam to 

generate electricity, which reduces their annual CO2 emissions by 

340,000 tons. 

There are literally thousands more across the country doing 

groundbreaking work to make themselves more sustainable, and 

they have names you know, like Hershey, and Subaru, and Clorox, 

and Pfizer; and names you might not know, like Nalco, FuelTech, 

L.S. Starrett. These companies are developing and installing technologies that reduce the emissions from reducing energy. They are 

making changes to their processes, and they are reducing their 

emissions right there on the shop floor. They are developing these 

technologies with an eye toward exporting them around the world 

and helping others. 

Now, there do remain barriers to accomplishing even more, but 

one I would like to focus on, as I do in my written statement, is 

New Source Review, a Federal air permitting program that applies 

to new facilities or major modifications. In practice, NSR has become a barrier to efficiency upgrades and the installation of modern pollution control equipment. The ups and downs of NSR can result in years-long delays, high modeling costs, citizen suits, and enforcement actions. And that is assuming you actually get the permit. Many simply just won’t bother. 

For instance, if a manufacturer installs selective catalytic reduction technology to reduce NOx emissions, the components can trigger NSR for that facility for all emissions, requiring a full comprehensive review. That is a lot of risk to shoulder for the installation of, really, just one component. 

One manufacturer reports that customers have asked it to de-optimize performance in a suite of efficiency upgrades in order to 

avoid triggering NSR. And NSR notice of violation have been 

issued for environmentally beneficial projects like economizer replacement, steam turbine upgrades, feedwater heater replacements, and similar activities. 

Even worse, NSR presents a very big impediment to the installation of the more efficient technologies that are going to be used to 

control climate change. In comments to the draft Clean Power 

Plan, the Utility Air Regulatory Group submitted an attachment 

that had 400 individual projects that would have increased the efficiency of power plants, only to be targeted by the EPA or citizen 

suits with NSR violations. That can’t possibly be what Congress intended when it set up this program. 

So, the NAM urges this Committee to work closely with EPA to 

fix NSR so that it functions properly and doesn’t stand in the way 

of efficiency. 

Manufacturers have established a strong environmental protection record, and we strive to reduce the environmental footprint of 

our operations and become more sustainable. The results are already very impressive, and they get better with each passing year. 

However, as my testimony shows, barriers do still exist. The NAM 

29 

hopes it can work with this Committee to reduce these barriers and 

help solve the environmental challenges of current and future generations. 

Thank you. 

[The prepared statement of Mr. Eisenberg follows:] 

30 


28078.019

Ross Eisenberg is vice president of energy and resources policy at 

the National Association of Manufacturers (NAM). Mr. Eisenberg 

oversees the NAM's energy and environmental policy work and has 

expertise on issues rauging from energy production and use to air 

and water quality, climate change, energy efficiency and 

environmental regulation. He is a key voice for manufacturing on 

Capitol Hill. at federal agencies and across all forms of media. 

Before coming to the NAM in 2012, Mr. Eisenberg spent more than 

five years as environmental and energy counsel at the U.S. 

Chamber of Commerce, the world's largest business tederation. He 

was also executive for the Chamber's Environment & Energy 

Committee, the Chamber's primary vehicle tor the creation and 

development of environmental and energy policy. 

Prior to joining the Chamber, Mr. Eisenberg spent five years as an environmental, energy and 

insurance coverage attorney in the D.C., office of Greenberg LLP, a fullservice international law tlrm with more . 700 lawyers. At Greenberg 

Eisenberg represented large and small companies on a wide range of environmental and energy 

matters, including permitting and compliance with tederal, state and local laws and regulations; 

pesticide registration; rights of way and ratemaking; environmental insurance coverage; and 

assorted litigation. 

Mr. Eisenberg a member ofthe State Bar of the District of Columbia. He has a B.A. trom 

Emory University and a J.D. trom Washington and Lee University School of Law. 
31 


28078.020

Manufacturers 

Testimony 

of Ross Eisenberg 

Vice President 

Energy and Resources Policy 

National Association of Manufacturers 

before the Senate Committee on Environment and Public Works 

on "Promoting American Leadership in Reducing Air Emissions Through Innovation" 

November 15, 2017 
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TESTIMONY OF ROSS EISENBERG 

BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

Hearing on: 

"Promoting American Leadership in Reducing Air Emissions Through Innovation" 

NOVEMBER 15, 2017 

Good morning, Chairman Barrasso, Ranking Member Carper and 

members of the Environment and Public Works Committee. My name is Ross 

Eisenberg, and I am the vice president of energy and resources policy at the 

National Association of Manufacturers (NAM). The NAM is the nation's largest 

industrial trade association, representing nearly 14,000 small, medium and large 

manufacturers in every industrial sector and in all 50 states. I am pleased to 

represent the NAM and its members and provide testimony on manufacturers' 

continued commitment to reduce air emissions. 

Manufacturers have sharply reduced our impact on the environment 

through a wide range of innovations, such as increasing energy efficiency, saving 

and recycling water and implementing successful initiatives to reduce pollution 

and waste. Through these traditional and innovative measures, manufacturers 

have helped to usher in a new era of a cleaner and more sustainable 

environment. 

My written statement is broken into three parts. The first reviews air 

emission trends in the U.S. and the manufacturing sector. The second provides 

an overview of the technologies and innovative solutions manufacturers have 

developed to reduce their emissions. The third part identifies barriers that are 
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preventing manufacturers from doing even more to reduce emissions and 

increase efficiency. 

A. Economy-Wide Emissions 

The story of U.S. air pollutant emissions is a positive one. Since 1990, a 

period spanning four different presidential administrations and 14 different 

Environmental Protection Agency (EPA) administrators, national pollutant 

concentrations have dropped dramatically. Carbon monoxide concentrations are 

down 77 percent; lead 99 percent; nitrogen dioxide 54 percent; ozone 22 

percent; coarse particulate matter 39 percent; fine particulate matter 37 percent; 

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and sulfur dioxide 81 percent. 1 

On greenhouse gases (GHGs), the United States has made greater 

reductions over the past decade than any other nation on earth.2 The following 

chart from the EPA's most recent Inventory of U.S. Greenhouse Gas Emissions 

and Sinks shows the positive trends. 

Figure ES·3: cumulative Change In Annual Gross u.s. Greenhouse Gas Emissions Relative to 1990 (1990=0, MMT COa Eq.} 

Source: Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015 

B. Manufacturing Sector Emissions 

While it is useful to view the emissions reduction trends of the broader 

economy, it is worth focusing on the industrial sector's emissions and how they 

have decreased over time. For virtually every air pollutant regulated by the EPA, 

the manufacturing sector has made dramatic reductions over the past few 

decades. Today's manufacturing company is a sleek, technology-driven 

1 U.S. EPA, "Our Nation's Air: Status and Trends Through 20!5,'' available at 

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operation that looks nothing like the industrial facilities of the past. With that 

progress has come a smaller environmental footprint. 

Nitrogen Oxides (NOx) 

In the case of nitrogen oxides (NOx), a criteria pollutant and the primary 

precursor of ozone, industrial emissions have dropped by 53 percent since 1970. 

The vast majority of the decline has come from technologies to reduce NOx 

emissions at onsite industrial power generation facilities. Industrial NOx 

Nitrogen Oxides (NOx) (Thousands ofTons) emissions have 

Source: EPA Notional Emissions Inventory 

historically 30000 

25000 represented 

20000 

15000 around 15 to 25 

10000 

5000 percent of total 

0 

1970 1975 1980 1985 1990 1995 2000 2005 2010 2016 NOx emissions in 

!t1 Transportation Ill Fuel Combustion (Non-Industrial) Ill industrial Emissions the United States. 

Carbon Monoxide (CO) 

The manufacturing sector's carbon monoxide (CO) emissions have 

dropped 70 percent since 1970. Most of these reductions have come through 

improvements to the manufacturing process. The chemical sector has reduced 

its CO emissions a staggering 96 percent; metals processing has reduced its CO 

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emissions 83 percent; petroleum and related industries have reduced their CO 

emissions 61 percent; and waste disposal and recycling industries have reduced 

their CO emissions Carbon Monoxide (CO) (Thousands ofTons) 

Source: EPA National Emissions Inventory 

70 percent. Overall, 250000 

manufacturing CO 200000 

emissions are 150000 

100000 

relatively small 50000 

compared to 0 

1970 1975 1980 1985 1990 1995 2000 2005 2010 2016 

overall CO Ill Transportation !ll Fuel Combustion (Non-Industrial) lndustrial 

emissions. However, these emissions have also dropped dramatically over time, 

a 71 percent reduction. 

Coarse Particulate Matter (PM10) 

Manufacturers have reduced their emissions of coarse particulate matter, 

or PM1 0, by 83 percent since 1970. The vast majority of these reductions have 

come from changes to the manufacturing process across individual sectors. For 

instance, chemical 

manufacturers have 

reduced their PM1 0 14000 

emissions by 91 

percent; metals 

processing has 

reduced its PM1 0 

Coarse Particulate Matter 

(Thousands of Tons) 

Source: EPA National Emissions Inventory 

1970 1975 1980 198o 1990 1995 2000 2oos 2010 2016 

m Tr:anspcrtat!on a Fuei Cornbustlon (Non-1ndustrta!J lndustrla! 

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emissions by 96 percent; petroleum and related industries have reduced their 

PM1 0 emissions by 87 percent; and waste disposal and recycling industries have 

reduced their PM1 0 emissions by 70 percent. It is worth noting that the lion's 

share of PM10 emissions tracked by the EPA are not from industry, 

transportation or electricity production; they are what the EPA calls 

"miscellaneous" PM10, which include wildfires, windblown dust from open lands, 

wood burning stoves and fireplaces and dust from construction and agriculture. 

Miscellaneous PM1 0 represents almost 90 percent of total PM1 0 in the United 

States today. 

Fine Particulate Matter (PM2.5) 

Like PM1 0, the bulk of the fine particulate emissions measured by the 

EPA are classified as "miscellaneous," meaning not from industrial, 

transportation or power generation sources. Overall, total PM2.5 emissions from 

industrial, transportation and power generation sectors have dropped by 25 

percent since 1990, the first year the EPA began measuring this pollutant. The 

industrial sector 

has reduced its 

8000 

PM2.5 emissions 

6000 

6 percent since 4000 

1990 and 23 :?000 

percent since its 0 

peak in 1999 and 

Fine Particulate Matter (PM2.5) (Thousands 

ofTons) 

Source: EPA Notional Ernlssions Jnventcry 

~Miscellaneous ~Transpor·tat!on 

IIIIi fuel Combustion (Non~lndustria!) !ndustrla! 

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will continue to reduce its emissions significantly as manufacturers take steps to 

comply with the 2012 Boiler MACT regulation. 

Sulfur Dioxide (S02) 

Sulfur dioxide (S02) emissions have dropped precipitously over the past 

four decades. Since 1970, the industrial sector has reduced its S02 emissions by 

90 percent; electric utilities and other fuel combustion sources have reduced their 

S02 emissions by 93 percent; and the transportation sector has reduced its S02 

emissions by 91 

percent. Within 

manufacturing 

specifically, the 

chemical sector 

35000 

30000 

25000 

20000 

15000 

10000 

has reduced its sooo 

0 

Sulfur Dioxide (Thousands of Tons) 

Source: EPA National Emissions Inventory 

S02 emissions by 1970 1975 1980 1985 1990 1995 2000 2005 201() 2016 

80 percent; !l1.!l Transportation Ill Fue! Combustion {Non~lndustrta!) fndustrlal 

metals processing has reduced its S02 emissions by almost 98 percent; 

petroleum and related industries have reduced their S02 emissions by 88 

percent; and other industrial processes reduced their S02 emissions by 80 

percent. Manufacturers accomplished these dramatic reductions through 

technologies that allowed them to bum energy with less emissions, as well as 

technologies that reduced the S02 emissions in the manufacturing process. 

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Volatile Organic Compounds (VOCs) 

Emissions of volatile organic compounds (VOCs), which mix with NOx to 

form ground-level ozone, have also been reduced considerably. Since 1970, 

manufacturers 

have reduced their 

VOC emissions by 

40000 

4 7 percent; the 35ooo 

30000 

transportation 25ooo 

sector has 

reduced its VOC 

20000 

15000 

10000 

5000 

0 

Volatile Organic Compounds (VOC} 

(Thousands of Tons} 

Source: EPA National Emi55ions Inventory 

emissions by 82 1970 1975 1980 1985 1990 1995 2000 2005 2010 2016 

percent; and the Ill Transportation Ill Fuel Combustion (Non-Industrial) I!!J lndustriol 

power generation fleet has reduced its already-small emissions of VOCs by 26 

percent. The vast majority of the manufacturing sector's VOC reductions have 

come through changes to the manufacturing process; the introduction of new 

chemicals, feedstocks and technologies; or reformulation of products. For 

instance, California's South Coast Air Management District reports that VOCs 

from architectural coatings in the Los Angeles area decreased more than 50 

percent between 2008 and 2014. 3 

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Greenhouse Gases (GHGs) 

The manufacturing sector emits greenhouse gases (GHGs) in two ways: 

during energy production and through industrial processes and product use. The 

good news is that 

the industrial sector 

actually produces 

less emissions than 

it did in 1990, a 

considerably 

different story 

2000 

1500 

1000 

500 

0 

Greenhouse Gas Emissions C02 Eq.) 

Source: Inventory of U.S. Greenhouse Gas Emissions and Sinks: 

1990·2015 

J JJJ J JJJJJ J JJJ 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 

& Industrial Processes and Product Use m.i' !ndustr!al Fossil Fue! Consumption 

compared to the broader U.S. economy. 4 Just over the past decade, 

manufacturers have reduced our GHG emissions by 10 percent while increasing 

our value to the economy by 19 percent Many of those reductions have come 

from improved energy efficiency and changes to the mix of fuels manufacturers 

use. 

Part Two: The Innovations Manufacturers Are Using to Clean Up the Air 

The aforementioned charts are not meant to suggest that our 

environmental problems are over. Despite best-in-class efforts, the United States 

and the world continue to face serious environmental and sustainability 

challenges. There are forces far beyond the control of manufacturers in the 

United States that are driving changes to the global environment The world's 

4 Inventory ofU.S. Greenhouse Gas Emissions and Sinks, !990-2015, available a/ 

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population is expected to grow from 7.6 billion people today to 9.7 billion by 

2050; 795 million people in the world do not have enough food to lead a healthy, 

active life; 1.3 billion people lack access to electricity; and droughts and other 

natural disasters threaten many already environmentally and economically 

stressed parts of the world. Mitigating the impacts of climate change, protecting 

the air, feeding the world's growing population and ensuring adequate supplies of 

drinking water are just a few of the significant issues facing current and future 

generations. 

Manufacturers have demonstrated a commitment to protecting the 

environment through greater sustainability, increased energy efficiency and 

reducing emissions. We will continue to lead by minimizing environmental 

footprints, reducing emissions, conserving critical resources, protecting 

biodiversity, limiting waste and providing safe products and solutions so others in 

the economy can do the same. 

For instance, to control 802, acid gas and particulate matter emissions, 

manufacturers develop and install wet scrubbers, dry scrubbers with fabric filters, 

dry sorbent injection technologies and electrostatic precipitators. These 

technologies have been effective in controlling emissions on industrial boilers, at 

cement kilns, petroleum refineries, glassmaking facilities, lime kilns, coke 

manufacturing, chemical plants, pulp and paper facilities, brickmaking plants, 

asphalt and ferrous metals plants. Manufacturers have developed cost-effective 

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technologies that can remove up to 95 percent of PM, 95 percent of S02 and 90 

percent of acid gases.s 

To control VOCs, manufacturers develop and install technologies such as 

ventilation air methane systems, afterburners, regenerative oxidizers, catalytic 

systems, recuperative oxidizers and absorbers. Controls are deployed over a 

wide range of industries-including petrochemical, chemical, pharmaceutical, 

wood products, painting, coating, electronics and oil and gas-and are capable 

of up to 99 percent VOC destruction. 

To control NOx and CO, manufacturers develop and install Selective NonCatalytic Reduction (SNCR) technologies, catalysts, Low-NOx Burners and 

Catalytic Reduction technologies. These are used on combustion sources, such 

as boilers, turbines, engines, process heat, iron and steel, lime kilns, glass and 

cement. These technologies control for CO up to 99 percent efficiency at more 

than 1 ,000 power plants and industrial boilers across the United States and can 

remove greater than 95 percent of NOx at temperatures ranging from 300"F to 

2,000T 

Controlling GHGs is a considerably different task than the conventional 

pollutants above. There is no ready-made, bolt-on technology solution to reduce 

GHGs from industrial operations or the products we manufacture. This is forcing 

manufacturers to get creative to achieve strong GHG reductions. Manufacturers 

of all shapes and sizes are setting GHG targets to 2020, 2025 and beyond-and 

5 See, e.g., The Institute of Clean Air Companies, Domestic Conventional Pollutants Division and 

Emissions Management Division, Issue Brief, available at 

http: '/www.icac.com/?page-DomConvPollutants. 

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are often beating them several years early. They are doing this by innovating, 

taking risks, driving efficiencies, streamlining their processes and relying on 

internal experts who know their businesses best. 

Every manufacturer's operation is unique. That diversity is part of the 

challenge, but it can also lead to breakthroughs and innovation. We asked our 

members to send us examples, in their own words, of success stories in 

deploying environmental solutions at their facilities. Here are their stories. 

MGK is a Minneapolis-based manufacturer that develops branded and 

custom insect control solutions. It recently lowered the VOC load in its aerosol 

and liquid products by levels between 30 and 70 percent. Some of this was done 

by shifting from solvent-based formulas to water-based formulas, and some 

came from lowering the use of hydrocarbon propellants in aerosols. MGK also 

lowered conventional pollutant emission rates by adding scrubbers to its stacks 

and reduced its use of methylene chloride by amending its production process to 

require fewer clean-out events and finding alternate solvents to use in clean-outs. 

Gerdau Long Steel North America is in the process of upgrading its steel 

mill in Rancho Cucamonga, California-the only steel mill in the state-with a 

$23 million emissions control system that will be used to meet new South Coast 

Air Quality Management District air emission regulations, which are some of the 

most stringent in North America. This state-of-the-art environmental control 

system project took two years to design, and the design process alone cost $2 

million. When completed, the system will capture 99.9 percent of contaminants in 

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the emissions from the mill, making the Gerdau Rancho Cucamonga steel mill 

one of the world's greenest. 

Xerox has taken strong steps to reduce its environmental footprint. The 

company has focused on reducing the emissions that originate from the 

production of imaging supplies, such as toner, photoreceptor drums and belts 

and fuser rolls. Xerox has managed to reduce emissions through process 

modification, lower production volumes of legacy products coated using organic 

solvents and producing components with longer life spans, which results in fewer 

replacement components produced. The release of materials used in Xerox's 

worldwide operations is evaluated annually and reported to government agencies 

under national toxic chemical release reporting regulations, such as the U.S. TRI, 

the Canadian National Pollution Release Inventory and the European Pollutant 

Release and Transfer Register. Releases for reporting year 2016 remained 

unchanged compared to 2015 levels and were 75 percent lower than 2007 

levels. 

Nucor pioneered a new way of steelmaking when it introduced the minimill, an electric arc furnace with a considerably smaller environmental footprint 

than a traditional blast furnace: per ton of steel, the mini-mill results in a 99.2 

percent reduction in particulate matter, an 86 percent reduction in S02, an 80 

percent reduction in NOx, a 91 percent reduction in CO and a 71 percent 

reduction in V0Cs.6 The company recently introduced the micro-mill, a facility 

6 http://www.nucor.com/responsibility/sustainability/highlights/. 

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with an even smaller environmental footprint than mini-mills, and it announced 

this fall that it is seeking to build a new micro-mill in the United States.? 

At the chemical manufacturer Olin Corporation, employees within 

manufacturing and engineering, logistics and supply chain are encouraged to 

conceptualize, develop and execute productivity enhancement projects each 

year. The top 60 projects that deliver significant productivity gains are then 

presented by the global project teams to the company's top leadership in a 

conference setting. Providing an opportunity to leverage ideas, share 

opportunities and recognize the efforts and achievements of the project teams, 

the event serves as both a valuable development opportunity for employees and 

helps build further best practices for productivity and efficient, sustainable 

manufacturing practices throughout the organization. 

Air Products and Chemicals has reduced its hazardous air pollutant (HAP) 

emissions by 82 percent and S02 emissions by 60 percent since 2010. The 

company also develops a wide range of products and technologies that help 

manufacturers reduce their own emissions. Air Products' Helia® advanced 

oxidation technology reduces VOC emissions from wastewater treatment plants; 

it produces hydrogen used in refining to produce cleaner transportation fuels and 

to power advanced fuel cell vehicles; and its biogas membrane separators purify 

methane from farm waste, manure and municipal waste and help turn it into 

energy. 8 

7 https://www.pmcwswire.comlnews-releases/nucor-board-of-directors-approves-steel-bar-micro-millproject-and-merchant-bar-operations-expansion-3005204!8.html. 

8 http:/ /w>Vw .airproducts. com/-/ media/Files/PDF/ compan y/20 I 7 -sustainability-report.pdf' Ia= en. 

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Covestro, formerly Bayer MateriaiScience, committed to reduce its 2005 

carbon dioxide (C02) levels by 40 percent by 2020. The company has already 

beaten that goal and set a new goal to cut C02 emissions in half again by 2025. 

It accomplished this by making numerous production improvements at Covestro 

facilities across the globe, including a $120 million investment at its largest facility 

in Baytown, Texas, to improve energy efficiencies, minimize waste and reduce 

natural resource consumption. Covestro developed a new manufacturing process 

that allows it to replace petrochemical feedstock with C02 and recently opened a 

new plant that will utilize this technology to make polyurethane foam for 

mattresses and furniture. 

In the fall of 2012, steel manufacturer ArcelorMittal partnered with the 

federal government to install a 38-megawatt combined heat and power system to 

utilize previously wasted blast furnace gas (BFG), a by-product of the iron 

making process, to produce electricity on-site at its Indiana Harbor, Indiana, 

complex, the largest steelmaking facility in North America. The $63.2 million 

waste energy recovery system captures approximately 46 billion cubic feet of 

BFG from the facility's No. 7 blast furnace and uses it to produce steam to 

generate electricity. The installation lowered the facility's annual energy costs by 

nearly $20 million and reduced annual C02 emissions by 340,000 tons. In 

addition, the project created approximately 360 manufacturing and construction 

jobs and helped retain 4,850 employees at the facility by lowering the production 

costs of steel by $5 per ton. 

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BASF's global leadership in emissions reduction technologies for the 

automotive industry began in the 1 960s with the creation of the catalytic 

converter by scientists working in Iselin and Union, New Jersey. In 2002, BASF's 

scientists eamed an award for their work on the three-way catalyst, a key 

contributor to cleaner air for billions of people in the United States and around the 

world. More recently, BASF has continued to move the industry forward with the 

development of a four-way conversion catalyst that will reduce emissions of PM 

in addition to CO, NOx and HCI. The three-way catalysts are produced at BASF's 

Huntsville, Alabama, facility, a site that walks the talk of environmental 

stewardship and recently celebrated the production of the 400 millionth catalyst. 

All 650 employees are actively engaged in not only producing sustainable 

solutions for the automotive industry but also ensuring their own operations are 

just as sustainable. This summer, they were certified a virtual zero waste to 

landfill facility, one of only three manufacturing facilities in all of North America 

that is currently valid to UL Environment's UL 2799 certification. Their overall 

material management and recycling activities saved more than 35,000 metric 

tons of C02e emissions and 1 ,500 metric tons of non-methane VOCs. Last 

month, they were awarded the Air Pollution Control Achievement Award by the 

city of Huntsville for their recent site-wide LED conversion lighting project, which 

saved more than 1,000,000 kilowatt-hours per year of electricity (a 57 percent 

reduction) and reduced greenhouse gas emissions by more than 730 metric tons 

per year. 

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Calgon Carbon Corporation is a global leader in innovative solutions, highquality products and reliable services designed to protect human health and the 

environment from harmful contaminants in water and air. As a leading 

manufacturer of activated carbon, with broad capabilities in ultraviolet light 

disinfection, Calgon Carbon provides purification solutions for drinking water, 

wastewater, pollution abatement and a variety of industrial and commercial 

manufacturing processes. One of the company's signature achievements has 

been the development of activated carbon-based products to control mercury 

emissions from coal-fired power plants, industrial boilers and cement kilns. 

Although the status of the regulations was an uncertain and winding road over 

the past decade, Calgon Carbon proactively invested more than $30 million to 

develop a better understanding of the issue, new products that delivered 

necessary mercury capture performance and new production capacity to meet 

the uncertain future demand. These products are being used by electric utilities 

to comply with the Mercury and Air Toxics Standard Rule. 

Global engine manufacturer Cummins has a long history of setting and 

exceeding energy and GHG reduction goals at its facilities and operations. At the 

company's high-horsepower engine plant and technical center in Seymour, 

Indiana, Cummins made a $5 million investment in advanced energy-efficiency 

technology called regenerative dynamometers, which convert engine power from 

test cells to electricity that can be used onsite and exported to the grid. This 

innovative approach to energy efficiency will help Cummins reduce electricity 

consumption by 14,000 MWh per year and reduce electricity costs by $1.2 million 

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per year. The ability to net-meter this energy and to sell energy back to the grid 

has allowed Cummins to make this investment worthwhile. Cummins' engine 

plant in Jamestown, New York, recently showcased its latest initiative, a $47 

million block machining line that utilizes on-demand hydraulics, coolant and 

pneumatics to reduce energy consumption as it produces the company's highefficiency diesel and natural gas heavy-duty engines. Among other 

improvements, the plant in recent years has also replaced nearly 3,000 

fluorescent lights with advanced LED lighting and a Wi-Fi-enabled control system 

that can automatically shut the lights off in parts of the plant not in use. National 

Grid, one of the largest investor-owned energy companies in the world, partnered 

with Cummins to invest $692,000 into the project as part of an effort to 

incentivize customers to use energy-efficient lighting, controls, heating and airconditioning equipment and more. The plant's roof, meanwhile, has a nearly 

2MW solar panel installation that on a sunny day will produce more than 20 

percent of the facility's electric power needs. 

In 2013, ConocoPhillips' Eagle Ford fugitive emissions team began to 

identify and eliminate equipment emission sources, beginning with leaks from 

tank thief hatches, wellsite controllers and flares. The team uses infrared camera 

technology to find emission leaks and follows up to ensure problems are 

addressed. The program has evolved into a planned preventive maintenance 

program encompassing all field sites. The fugitive team or a follow-up crew 

repairs the leaks. Data are recorded in the SAP work order system, and a 

detailed worksheet documents the emission history and associated work 

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performed. Documentation includes confirmation that the observed problems 

were addressed. A preventive maintenance schedule ensures that every site is 

inspected at least once a year. This proactive model demonstrating an effective 

way to manage fugitive emissions has been adopted across the company's 

Lower 48 business unit. In addition, Eagle Ford Operations has installed 

automation and centralized alarming to proactively maintain lit flares. All flares 

are alarmed to register flare-outs and to signal the Eagle Ford Integrated 

Operations of the Future team of any incident. 

Owens Corning has set an aggressive target for reducing its GHG 

emissions-50 percent below 2010 levels by 2020-and is taking its commitment 

one step further, reducing the embodied carbon emitted throughout the product 

lifecycle, including raw material extraction, transportation and manufacture. Just 

last week, the company announced three new types of insulation made with 100 

percent-certified wind energy. These products are intended to give commercial 

architects and specifiers, builders and even homeowners the option of lowercarbon products to build greener structures. 

Energy Transfer Partners (ETP) operates from the position that emission 

reductions are rooted in building and operating safe, well-maintained and reliable 

facilities to prevent accidents from happening. ETP has for several years utilized 

FUR infrared cameras to survey for natural gas leaks at its natural gas 

compression stations and treating plants. The program originated as a safety 

initiative to ensure that hazardous conditions did not exist for employees and has 

also evolved into an operations reliability program to reduce lost product and 

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identify maintenance issues. ETP was surveying for natural gas leaks long before 

regulations were promulgated by the EPA. ETP also utilizes LIDAR aerial 

technology to survey pipelines for leaks. This early detection technology can 

identify very small leaks by measuring vegetation disturbance and/or using 

hydrocarbon detection. This program prevents larger spills and releases and 

reduces repair and cleanup costs that are associated with a pipeline failure. 

Finally, at ETP's King Ranch Gas Processing Plant, ETP's engineering and 

safety requirements led the company to replace two in-service Light Petroleum 

Distillate (LPD) tanks with state-of-the-art pressurized tanks. Replacement of the 

original tanks with new pressurized tanks essentially eliminated all VOC 

emissions associated with storage of the LPD product-a net reduction of 

approximately 10 tons per year of VOC. 

Johnson Controls has made substantial emissions reductions across its 

U.S. manufacturing portfolio. A key part of this has been its engagement with the 

Department of Energy's (DOE) Better Plants program, which helps 

manufacturers improve the energy efficiency of their operations. The Better 

Plants program offers a variety of solutions and resources for partners, including 

materials, tools, webinars and on-site visits to help identify energy savings 

opportunities. Johnson Controls joined the DOE Better Buildings Better Plants 

Challenge in 2013, and it set a goal of a 25 percent reduction in energy intensity 

in 10 years, using a 2009 baseline, for its manufacturing facilities located in the 

United States. This year, Johnson Controls was recognized by the Better Plants 

program with two awards: ( 1) the Better Plants, Better Practice Award for 

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establishing a company-wide Energy Hunt program as part of the Johnson 

Controls Manufacturing System that resulted in a threefold increase in identified 

energy savings projects; and (2) the Better Plants Goal Achievement Award for 

achieving its 25 percent energy intensity reduction goal across its U.S. industrial 

facilities, three years ahead of schedule, with a 26 percent reduction by end of 

2016. Johnson Controls has implemented its Energy Hunt program across its 

U.S. manufacturing locations, including plants in Delaware, Illinois, Kansas, 

Oklahoma and Oregon. 

Illinois Tool Works (ITW), one of the world's leading diversified 

manufacturers of specialized industrial equipment, consumables and related 

service businesses, is taking steps to phase out the refrigerants containing high 

global warming potential (GWP) in the commercial kitchen appliances it 

manufactures. ITW began its equipment transition early and is ahead of schedule 

to meet EPA compliance dates, by either using refrigerant alternatives with a 

lower GWP value or developing products using "natural" refrigerants like propane 

that have no GWP impact if emitted into the atmosphere. 

Schneider Electric, a leader in process efficiency and automation, is 

driving emissions savings at fifteen of its own U.S. plants, from Smyrna, 

Tennessee to its headquarters in Massachusetts, reducing the equivalent of 

5,788 tons of carbon in 2016.9 Schneider Electric has a sustainability objective of 

becoming carbon neutral by 2030. The company developed an Internet-ofThings, cloud-enabled platform called EcoStruxure to make buildings, power 

9 https://www.energy.gov/sites/prod/files/20 17 /05/134/Schneider Electric EW A Case Study 5-l2-l7.pdf. 

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plants, and facilities smarter, improve processes, and save on down time, energy 

and water costs-a technology solution the company believes will be a useful 

compliance tool for power plant GHG policies. Schneider Electric recently helped 

implement enterprise-wide energy management solutions in 43 of Ford Motor 

Company's U.S. locations, leading to 40 percent energy efficiency savings. 

Part Three: Barriers to Innovation and Progress in Reducing Emissions 

The stories above, and the hundreds like them across the manufacturing 

sector, are impressive. However, there remain barriers to accomplishing even 

more. New Source Review, EPA policy on MACT standards, continuity problems 

for federal support programs and trade policy all present challenges that prevent 

manufacturers from making even deeper emissions reductions. 

New Source Review 

The New Source Review (NSR) program is a federal air permitting 

program under the Clean Air Act that applies to new facilities or major 

modifications to facilities. The purpose of NSR, according to the EPA, is to 

require industrial facilities "to install modern pollution control equipment when 

they are built or when making a change that increases emissions significantly."10 

In practice, however, NSR often stands in the way of efficiency upgrades and the 

installation of modern pollution control equipment. 

10 https://www.epa.govjsites/production/fi1es/20 15-12/documents/nsrbasicsfactsheet I 031 06.pdf. 

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For instance, if a manufacturer installs selective catalytic reduction 

technology to reduce NOx emissions, the component will trigger NSR for the 

entire source, requiring review of all emissions. Practically speaking, that means 

the manufacturer will need 12 to 18 months to obtain NSR permits, tying up 

investment capital and delaying the economic benefits from expansion projects. 

The program requires expensive air modeling that frequently delays projects and 

can cost $100,000 or more to complete. It can lead to citizen suits-not just 

during NSR but again during renewal of the facility's Title V operating permitand enforcement actions. And that is assuming the manufacturer actually gets 

the permit. 

EPA rules on netting of emissions under NSR unnecessarily delay, and 

sometimes prevent, manufacturers from replacing older fossil fuel boilers with 

newer, environmentally beneficial units. In addition, the EPA has required 

manufacturers to go through NSR when they replace relatively minor equipment 

(like a water pump) with a newer model, taking the position that only replacement 

with the original, inefficient, outdated part qualifies as "routine maintenance" that 

could avoid onerous permitting regulations. 

The desire to avoid NSR can therefore create several perverse incentives: 

(1) an incentive for manufacturers to operate their plants exactly as they were 

built and only to replace parts with the exact same part that existed when the 

plant was built; and (2) an incentive to keep a plant's overall emissions high in 

order to "save" them for use in a future project. One manufacturer reports that 

customers have asked it to de-optimize performance in a suite of efficiency 

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upgrades in order to avoid triggering NSR. Any rule that results in companies 

affirmatively taking steps not to optimize efficiency puts those companies at a 

competitive disadvantage. 

An NAM member company manufactures gas turbine upgrade technology 

that could improve the vast majority of in-service gas turbines by 2.6 percent and 

reduce their total C02 emissions per MWh by 6.5 percent; however, many 

manufacturers are choosing not to install this equipment simply because it 

triggers NSR. The same can be said for steam turbine upgrades, which would 

ensure higher grid efficiency, lower emissions and reduced wear and tear that is 

occurring from a rapidly changing electric grid. 

NSR also presents a huge impediment to the installation of more efficient 

technologies that would ultimately combat climate change. An inability to define 

what is "routine maintenance" has resulted in NSR Notices of Violation being 

issued for environmentally beneficial projects like economizer replacement, 

steam turbine upgrades, feed water heater replacements and similar activities. In 

comments to the EPA's draft Clean Power Plan, the Utility Air Regulatory Group 

(UARG) cited more than 400 instances in which a regulated entity took on a 

project to improve the energy efficiency of a power generation unit, only to be 

targeted by the EPA or citizen suits alleging that it had violated NSR. 11 

This cannot possibly be what Congress intended. In response to recent 

stakeholder outreach by the Department of Commerce and the EPA on 

11 Comments of the Utility Air Regulatory Group on Carbon Pollution Emission Guidelines for Existing 

Stationary Sources: Electric Utility Generating Units, Docket ID EPA-HQ-OAR-2013-0602-22768, 

Attachment A (Dec. 1, 2014). 

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regulatory impediments to manufacturing, commenters from aerospace, 

insulation, pulp and paper, hard rock mining, iron and steel, clean energy power 

generation, boiler manufacturing and many other sectors raised NSR as a 

serious regulatory impediment. The NAM urges this committee to work with the 

EPA to fix NSR so that it functions properly and does not stand in the way of 

efficiency upgrades or environmentally beneficial projects. 

Maximum Available Control Technology (MACT) Once-In-Always-In Policy 

The EPA's existing policy is that once a manufacturer is subject to a 

MACT standard, it will always be subject to that MACT standard and the 

regulatory obligations that go along with it-even if the manufacturer installs 

pollution control technologies that reduce its emissions below the threshold levels 

that originally triggered MACT applicability to begin with. Practically speaking, 

this means once a manufacturers' emissions are below the MACT-required limits, 

there are very few regulatory reasons why the manufacturer would drive them 

even lower. 

Ups and Downs of Federal Programs and Partnerships 

While a competitive market is generally the best way to encourage the 

development of transformational technologies, the reality is that both the public 

and private sectors have roles to play. For instance, the government can play a 

positive role in support of the research and development (R&D) of alternative 

energy sources or technologies at a pre-commercial stage. There is also an 

25 
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important federal role to be played in basic R&D of new high-risk energy 

efficiency and waste minimization technologies in energy-intensive industries, 

particularly where private-sector incentives may be inadequate. 

Over the past 15 years, Congress has repeatedly enacted and enhanced 

programs that provide assistance to manufacturers in modernizing their plants 

and the products they make in them. These programs, with names like ARPA-E, 

A TVM, DERA, Energy Star, Better Buildings and Better Plants, are all regularly 

used by manufacturers and contribute to many of the innovations described 

above. Scores of manufacturers participate in programs such as the EPA's 

Climate Leaders Program, the DOE's Better Buildings, Better Plants Challenge 

and the Clean Energy Manufacturing Initiative, and with the help of these 

programs, these companies have not only met but exceeded their emissions 

goals. Continuity challenges for these programs, which often become subjects of 

Congressional scrutiny, can stand in the way of long-term progress for the 

manufacturers that rely on them. 

Environmental Goods Agreement 

The world's most pressing environmental problems do not exist solely 

within our own borders. There is a trillion-dollar market for environmental goods, 

and manufacturers in the United States make some of the best pollution control 

technologies on the planet. Unfortunately, many of our trading partners charge 

tariffs as high as 50 percent on these goods. The NAM has been a longtime 

supporter of efforts by the U.S. Trade Representative to negotiate an 

26 
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Environmental Goods Agreement (EGA). A properly structured EGA would 

create jobs for U.S. manufacturers, who could then sell their best-in-class 

pollution control technologies to the rest of the world. 

In the EGA talks, the United States, China and 15 other World Trade 

Organization members are considering a list of more than 350 environmental 

products that the NAM hopes will form the basis for an ambitious agreement. In 

particular, NAM members are seeking an EGA that eliminates tariffs on products 

including air pollution equipment, catalytic incinerators, energy-efficiency 

materials, environmental monitoring equipment, renewable energy products and 

equipment, turbines for electrical power generation and water treatment 

equipment. 

The benefits of a robust EGA to manufacturers in the United States are 

crystal clear: it will boost U.S. manufacturing and our broad environmental goals 

as a country, supporting jobs and growth throughout the supply chain. It will also 

be an important catalyst to increased trade and innovation in technologies that 

will improve the environment, from providing cleaner water to reducing pollution, 

and support the growth of the manufacturing industries that produce these 

technologies. In the United States, such technologies are manufactured 

throughout the country, providing well-paying jobs. 

Conclusion 

Manufacturers have established a strong record of environmental 

protection and strive to reduce the environmental footprint of our operations and 

27 
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to become more sustainable. The results are already impressive, and they get 

better with each passing year. However, as my testimony shows, barriers still 

exist. The NAM hopes it can work with this committee to reduce these barriers 

and help solve the environmental challenges of current and future generations. 

28 
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Senate Environment and Public Works Committee 

Hearing entitled, "Promoting American Leadership in Reducing Air Emissions Through 

Innovation" 

November 15,2017 

Questions for the Record for Ross Eisenberg 

Chairman Barrasso: 

1. Mr. Eisenberg, at the hearing, you said that it is time to modernize the Clean Air Act. 

How do we build trust in Congress that changes to the Clean Air Act could actually result 

in net environmental gains and emissions reductions? In addition to the provisions 

governing New Source Review, are there other parts of the Clean Air Act that need to be 

significantly amended due to implementation challenges or that are simply outdated? 

Answer: 

As my testimony demonstrated, our environmental indicators are steadily improving. 

However, they are coming at an ever-increasing cost. Federal environmental regulations-many 

based on statutes that are decades old- are increasingly rigid, costly and harm our global 

competitiveness. Several recent regulations threaten to set new records for compliance costs, 

collectively strapping manufacturers with hundreds ofbillions of dollars in new regulatory 

burdens per year. We have lost the critical balance in our federal environmental policies between 

furthering progress and limiting unnecessary economic impacts. The state of our national 

economy, the manufacturing sector and the environment are considerably different than they 

were 20, 30 or 40 years ago. However, we are still operating with policies designed to address 

the environmental challenges of a previous era. Manufacturers believe it is time to modernize our 

environmental policies to better reflect and address current issues, technologies and opportunities 

to ensure a more sustainable future. 

The NAM recommends that Congress modernize outdated environmental laws written in 

the 1960s and 1970s and make them perform better, or require federal agencies to regulate 

environmental challenges better- or both. As you and Ranking Member Carper both recognized 

at the hearing, there is a significant amount of trust that needs to be rebuilt in order to accomplish 

this goal. 

I believe the answer to this problem lies, at least in part, in data and transparency. One of 

the main reasons T used the first ten pages of my testimony to reconstruct the emissions data for 

manufacturing on a pollutant-by-pollutant basis is to provide an unbiased view of the data for the 

Committee. I had to construct each of these charts myself because they were not otherwise 

available on a public forum. T encourage the Committee and the EPA to commit to providing a 

steady stream of data, both on emissions trends and compliance, to help determine which 

programs are working and which programs need improvement. You cannot build a case for 

change unless you have the best available facts to support your position. 

Congress should work with the Environmental Protection Agency to audit key programs 

under the Clean Air Act like NSR, NAAQS, Title V and NESHAPs. The goal should be to mine 

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the data and detennine if the issues that have been raised are in fact borne out by the data. 

Congress should also empower the EPA to identify areas the Agency and/or states may not have 

the best data. For instance, some air permitting programs are done by hand and are not available 

online. 

In addition to NSR, I believe the Committee should examine the NAAQS, NSPS and 

HAP programs. Not all situations will merit action. However, I do believe there are 

improvements available to programs like the NAAQS, which have been so successful that many 

pollutants are approaching background levels and the bulk of the compliance technologies have 

already been invented. The past two ozone NAAQS revisions have encountered the bizarre 

situation where even EPA admits that a large portion of the technologies needed for compliance 

do not exist. 

The NAM specifically recommends the following: 

• Modify the National Ambient Air Quality Standards (NAAQS) review cycle to more 

closely align with the pace of implementation of existing standards and consider cost 

and technological feasibility when conducting NAAQS policy assessments and 

during implementation. 

• Require the Clean Air Scientific Advisory Committee (CAS A C) to comply with 

Section 1 09( d) of the Clean Air Act and "advise the Administrator of any adverse 

public health, welfare, social, economic, or energy effects which may result from 

various strategies for attainment and maintenance" ofNAAQS. 

• Amend Clean Air Act Section l79B to more clearly provide relief for states that 

cannot meet federal air quality standards due to contributions from emissions from 

outside the United States. 

• Provide flexibility to NAAQS nonattaimnent areas so that offset requirements are tied 

to reasonable and available reduction opportunities, with consideration to reasonable 

cost thresholds. 

• Simplify the New Source Performance Standards (NSPS) process to provide certainty 

for manufacturers that they are in compliance with the law. NSPS should be set using 

criteria that ensure optimal cost effectiveness and do not hinder economic growth. 

EPA should also allow adequate timing to demonstrate compliance once an NSPS is 

triggered. 

• Base any Hazardous Air Pollutant (HAP) regulations on sound scientific data that 

clearly demonstrate a need to protect public health and consideration of welfare, 

energy and economic impacts. The EPA's inability to meet arbitrary deadlines should 

not trigger automatic regulation. 

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2. In your written testimony, you mention the "once-in-always-in" policy under the Section 

112 program of the Clean Air Act. Can you explain how the current "once-in-always-in" 

policy works in more detail, and why it discourages emissions reductions at facilities? 

How would you recommend fixing the problem? 

Answer: 

"Once-in-Always-In" refers to a policy established by EPA that once a source emits 

enough above the threshold to become a ''major source" subject to a MACT standard, it is 

always subject to the regulatory obligations that accompany a major source, even if it reduces its 

emissions below the threshold that triggered MACT major source applicability. This is a policy 

interpretation by EPA and is not mandated by the statute. EPA issued a proposal to eliminate the 

policy in the mid-2000s, but the policy was never finalized. 

MACT requirements are often the most stringent in the Clean Air Act. If a major source 

is always a major source simply because it was once a major source, then manufacturers face the 

same regulatory burden regardless of whether they reduce emissions to the major source 

threshold or to a level substantially below the threshold. Manufacturers will continue to reduce 

their emissions because it is the right thing to do. That said, NAM believes if EPA were to 

abandon the once-in-always-in policy and instead allow facilities the benefit of being considered 

a minor source if they reduce emissions below the major source threshold, we could see even 

greater reductions of hazardous air pollutants. 

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Senator Whitehouse: 

Emissions of nitrogen oxide (NOx), the primary precursors of ozone pollution, and other air 

pollutants were rising significantly before 1970, according to government data reproduced below 

from the U.S. Forest Service website. 1 

40 

I 30 

t: 

0 

iii 

c 

~ 20 

- S02 .§. 

I - NOK 

10 

"' 

0 

40 50 60 70 80 90 

Veor 

3. In your written testimony, you observe that emissions ofNOx and other air pollutants 

have significantly declined since 1970. You don't mention that the Clean Air Act was 

amended in 1970 to provide for much greater federal authority to control air pollutants. 

Do you acknowledge that the Clean Air Act and the regulatory framework bear some 

responsibility for the decline in NOx emissions? 

4. The National Association of Manufacturers (NAM) lobbied against strengthening the 

Clean Air Act in 1970 and 1990. NAM warned that strengthening the laws and 

regulations to more stringently limit air pollutant emissions would have hurt industry. 

The American economy has expanded by more than 350 percent since the 1970 

amendment to the Clean Air Act and by almost 200 percent since the 1990 amendment to 

the Clean Air Act. Would you now concede that NAM's warnings overstated the risk to 

the economy by more aggressive federal clean air regulation? If not, please cite recent 

peer reviewed research that supports the position NAM previously took. 

5. Can federal clean air laws and regulation act as an incentive fur innovation? 

1 Acid Rain, National Forest Service, available at 

htl['S:I~.fs.fed.usi{QLesthealtll£fum!['!!bslfhncs/ci:@J'lli3/acid'"ral!k.l:!tm 

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6. Do you consider the catalytic converter to be an innovation? In your opinion, would the 

automobile industry have developed and installed catalytic converters on cars had it not 

been required by law to do so? 

7. With respect to sulfur dioxide (S02) emissions, the primary cause of acid rain, and 

referring again to the graph included in my first question, do you acknowledge that the 

Clean Air Acts amendment of 1970 bear some responsibility for the decline in S02 

emissions? 

8. As recently as the late 1980s, NAM opposed amending the Clean Air Act to require 

further reductions in S02 emissions, and even challenged the science linking S02 

emissions to acid rain, writing, "The present state of knowledge on the causes and effects 

of acid rain is, at best, ambiguous ... There is time for science to guide the public policy 

debate."2 Would you now concede that NAM's position in the 1980s about the causes 

and effects of acid rain were incorrect? If not, please cite any recent peer reviewed 

research that supports the position NAM took. 

9. In your written testimony, you attribute the reduction in industrial S02 emissions to 

"technologies that allowed [manufacturers] to burn energy with less emissions as well as 

technologies that reduced the S02 emissions in the manufacturing process." Do you 

consider these technologies to be innovations? 

10. In your opinion, would industry have voluntarily developed and installed such 

technologies had it not been required by law to reduce its S02 emissions? 

11. Turning to coarse (PM! 0) and fine (PM2.5) particulates, do you acknowledge that the 

1970 Clean Air Act amendment bears some responsibility for reductions in PM10 and the 

1990 Clean Air Act amendment bears some responsibility for reductions in PM2.5? 

12. NAM opposed regulations implementing the 1990 Clean Air Act amendment that 

required the reduction of particulates and other emissions, stating in 1996 that the 

regulations would have "a chilling effect on economic growth."3 Would you now 

concede that NAM's position on the regulation of particulates was overstated? If not, 

please cite any peer reviewed research that supports the position NAM took. 

13. Given the fact that NAM's historical claims that clean air laws and regulations would 

harm the American economy have not been borne out by actual economic data, why 

should policy makers believe any ofNAM's current similar claims relating to ozone 

'Dirty Industry Claims about Science: We 'w Heard These Falsehoods Before, National Resources Defense 

Council, available at 

Page 5 of6 
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National Ambient Air Quality Standards (NAAQS), the Clean Power Plan (CPP), and 

Corporate Average Fuel Economy (CAFE) standards? 

Answer: 

Thank you for your questions. The NAM is committed to protecting the environment and 

to environmental sustainability, and fully supports the ongoing national effort to protect our 

environment and improve public health through appropriate laws and regulations. American 

industry has established a strong record in environmental protection: as the foundation of 

communities, manufacturers have made substantial investments over time to minimize their 

environmental footprint, and continue to do so today. This commitment to innovation will ensure 

further progress. 

Attached is a copy of the NAM's most recent board-approved policy positions pertaining 

to energy and the environment. I would be more than happy to discuss them with you or your 

staff at your convenience. 

Thank you for the opportunity to testifY before the Enviromnent and Public Works 

Committee. I look forward to continuing our shared effort to protect the environment. 

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procedures. The NAM supports full implementation of those public participation provisions. 

Agencies should notify the public and request comment on all regulatory, guidance and 

research actions at the earliest feasible stage. Public comment periods should be consistent 

with the complexity of the document and the amount of time the agency needed to prepare it. 

Public comment and agency responses to comments should be included in an online public 

record. To enhance participation by stakeholders, government documents should be written in 

plain, understandable language. 

3.05. Freedom of Information 

The NAM recognizes and supports the public's right of access to certain types of information 

maintained by government. The submitters of confidential information provided to government 

have a corresponding right to expect that the confidentiality of such information shall be 

preserved. The NAM is especially concerned about the resultant harm to industry when 

disclosure is indiscriminate and fails to take into account the sensitive and confidential nature of 

business information. The NAM further believes that any statute providing access to 

government-held information must reflect a clear balance between the right of access and the 

right to confidentiality. A mechanism to safeguard confidential business information is essential 

if this balance is to be achieved. At the same time, public access to government information that 

is publicly releasable through the Freedom of Information Act should be as efficient and 

streamlined as possible. 

3.06. Information Quality 

Agencies should effectively implement the Information Quality Act, including having transparent, 

established systems for ensuring that information disseminated by an agency is of high quality 

and for dealing fairly and expeditiously with petitions for correction of such information. An 

unbiased peer review of scientific and technical information should be an integral part of the 

regulatory process. Pre-dissemination review of information is just as critical as a robust petition 

process. Under the petition process, denial of a request for correction in whole or in part is final 

agency action under the Administrative Procedure Act and subject to judicial review. 

ERP~01 Energy and Natural Re~ources 

Energy and natural resources are the life blood of manufacturing. Manufacturers need 

adequate, secure, reliable and affordable energy and raw materials to compete in the global 

marketplace. Luckily, the United States has a mix of energy resources and innovative 

technologies unmatched by any other nation in the world. The United States has abundant 

supplies of coal, natural gas and oil; our fleet of nuclear power plants cleanly and efficiently 

produce a substantial portion of the nation's electricity; renewable sources are growing quickly 

and diversifying the nation's energy portfolio; and advances in energy efficiency continue to cut 

manufacturers' energy costs. 

The NAM therefore supports an "all-of-the-above• approach to energy. This strategy promotes 

the responsible development and use of all energy sources, including fossil fuels, nuclear, 

renewables and alternatives and recognizes the importance of energy efficiency to meeting 

future energy demands. Government policies affecting energy, including those pertaining to the 

electric grid, must place a priority on reliability and must preserve manufacturers' global 

competitiveness. The NAM supports significant investments to modernize the national utility grid 
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and utilize advanced metering infrastructure, distributed energy resources and other advanced 

technologies to improve efficiency, affordability, reliability and security. 

The NAM and our member companies are committed to addressing global climate change while 

preserving competitiveness as set forth in Section 1.09 below. 

Government should not be in the business of picking winners and losers in the energy space, 

and must not impede or impair the ability of energy-producing and energy-consuming segments 

of industry to obtain adequate funding for energy-related investments. The NAM will identify and 

oppose overly restrictive regulations and the implementation of policies that limit or eliminate 

energy sources and production. 

1.01. Oil and Natural Gas 

There are abundant oil and natural gas resources in the United States, and domestic demand 

for these resources continues to increase. For manufacturers, the nation's domestic oil and 

natural gas supply is an important component of our energy future. Moreover, a reliable balance 

between supply and demand is important to assure competitive, stable prices. In today's global 

economy, U.S. manufacturers must be assured of an adequate supply of competitively priced oil 

and natural gas for industrial and commercial use, such as petrochemical feed-stocks, process 

gas uses and transportation fuels, and for power and steam generation. 

1.01a. Production 

The NAM supports policies that promote the leasing, exploration and development of the 

nation's oil and natural gas resources in an environmentally sound manner. Exploration and 

development of promising areas onshore, offshore and in the Arctic can substantially lower our 

nation's energy vulnerability. Continued attention to complying with safety standards will help 

ensure minimal safety, environmental and health impact. New technologies such as hydraulic 

fracturing and horizontal drilling have made the extraction of unconventional resources, such as 

shale gas and shale oil, technically feasible and cost-effective. Continued development of these 

resources, as well as other North American resources like the Canadian oil sands, can provide 

a steady stream of secure, competitively-priced energy for American manufacturers and 

consumers. A commitment to developing the nation's bounty of onshore and offshore sources of 

gas and oil will have a significant positive impact on this country's ability to meet its feedstock 

and energy needs. As is currently the case for states with onshore production from federal 

lands, and for Gulf Coast states with production from federal waters off their coasts, all states 

with federal offshore leasing and production should share in related federal revenues. 

1.01 b. Refining 

The refining industry is one of America's largest manufacturing sectors, and refined petroleum 

products play a critical role in meeting domestic transportation fuel demands. U.S. refineries 

process crude oil into products such as gasoline, distillate and jet fuels, heating oil and 

chemicals for domestic use and for export into world markets. U.S. refiners have responded to 

the call for a cleaner environment by producing cleaner fuels, such as reformulated gasoline, at 

competitive prices. Uninterrupted production of these products and the transportation 

infrastructure necessary to deliver them are essential to our national energy and economic 

security as well as to U.S. industry's ability to compete globally. 

1.01c. Natural Gas, Manufacturing and Liquefied Natural Gas (LNG) Exports 

Industry relies on natural gas for much of its energy needs and as a raw material. The NAM 

believes policies that encourage the cost-effective use of natural gas to grow American 

manufacturing should be encouraged. The U.S. economy relies on natural gas for its energy 
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needs and as a feedstock for commercial products. Natural gas is and will remain an important 

manufacturing commodity because of its scalability, affordability, versatility and efficiency. The 

NAM supports policies at the federal and state level that facilitate the responsible and 

expeditious development of natural gas resources, allowing these benefits to contribute to 

America's economic recovery and to accrue for energy consumers. 

The dramatic increase in the domestic natural gas resource base and accompanying natural 

gas production has substantially reduced net imports of natural gas, paving the way for the U.S. 

to become a net exporter of natural gas. An adequate supply of natural gas is needed to meet 

the growing demand of the U.S. manufacturing sector, and will be enabled by access to 

abundant domestic resources as well as increased access to global energy markets. The NAM 

strongly supports federal and state policies to accommodate growth in domestic natural gas 

production. We further believe abundant domestic natural gas resources can fuel a renaissance 

in U.S. manufacturing. The NAM fundamentally supports free trade and open markets as set 

forth in IEAP-01. We support a natural gas policy process that is open, transparent and 

objective. 

1.02. Coal 

Coal is an abundant energy resource in the United States, a significant and important export 

commodity, and a vital part of our efforts to meet our energy and transportation needs. The 

NAM believes increasing the utilization of advanced clean coal utility and industrial generation 

technology as well as expanding coal-to-gas and coal-to-liquid technologies in an 

environmentally sound manner is an appropriate and desirable national policy. Coal generates a 

significant percentage of our nation's electricity, and maintaining coal in a diverse national 

energy portfolio is in the national economic interest. 

Government actions that unreasonably increase the cost of production and use of coal for 

limited environmental or health benefits are counterproductive. Unbalanced laws and 

regulations governing air, water and solid waste are currently the most crucial restraint on coal 

production and the use of coal by industry and utilities. Environmental policies should be 

reviewed and applied in a manner that balances reasonable environmental objectives with the 

need to have a diverse fuel portfolio, including continued cost-effective coal use. 

1.03. Renewable, Alternative and Low-Carbon Energy Sources and Solutions 

Low-carbon, renewable and alternative energy resources such as wind, solar, geothermal, 

hydrogen fuel cells, hydropower, landfill gas, municipal solid waste (excluding paper which is 

commonly recycled) and sustainable biomass provide potential alternatives to traditional fossil 

fuels. Together these resources account for a steadily rising share of U.S. energy supply and 

development. A competitive market energy policy is the best way of encouraging economically 

sustainable alternative energy options. Government can play a positive role in support of the 

research and development of alternative energy sources or technologies at a pre-commercial 

stage. The NAM supports policies that encourage an energy mix including clean, renewable and 

low carbon energy resources and other power solutions and promote energy efficiency 

measures. Conversely, the NAM opposes federal government mandates for increasing the use 

of any energy source at the expense of any other. Significant grid improvements are needed 

and encouraged to ensure manufacturers have secure, flexible and competitive energy options. 

As the nation's energy mix expands and diversifies, government policies must place a priority on 

energy reliability. 
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Care must be taken to avoid potential adverse impacts on users of renewable feed stocks. 

agricultural and forest resources. Incentives should not create winners and losers in a quest for 

developing renewable fuels. In establishing federal renewable energy policies. the NAM 

encourages Congress to provide transparent assessments of costs and benefits. prioritize 

energy reliability, recognize regional differences in renewable energy resource availability, and 

not conflict with or pre-empt state programs already enacted, including well-constructed state 

renewable portfolio standards where they exist. Research and development efforts should be 

pursued related to potential utilization of non-traditional fuels and technologies as a means to 

enhance energy flexibility and expand diversification of energy supplies over time. 

1.03a Combined Heat and Power 

Consistent with U.S. manufacturers' demonstrated history of innovation, the NAM supports 

polices to encourage investment in combined heat and power (CHP) systems. When 

economical, CHP systems allow end users to realize energy savings greater than upfront 

investment and ongoing operation and maintenance costs and can reduce emissions. 

Policymakers should remove any remaining barriers that impede deployment of such energy 

efficient technologies. Working with all stakeholders, federal policymakers should consider 

model best-practices for states to address regulatory barriers to CHP deployment, including 

guidance for assigning reasonable fees and rates for interconnection to the local distribution 

grid, supplementary power, backup or standby power, maintenance, and interruptible power 

supplied to facilities that operate CHP systems that also allow for reasonable cost recovery by 

an electric utility based on the costs to provide these services and do not shift costs to non-CHP 

customers. 

1.04. Energy Delivery Infrastructure 

The NAM supports continued improvements to laws and regulations that result in a transparent, 

streamlined and timely federal regulatory process for the siting and permitting of all energy 

delivery infrastructure, including oil and natural gas pipelines, energy transport by rail, and 

interstate electric transmission infrastructure. Cost-effective investments in transmission 

infrastructure to improve the reliability, capacity, efficiency and security of the electric grid 

promote a competitive wholesale electricity market which benefits residential, commercial and 

industrial rate-payers. Transparent assessment of the full cost of intermittent technologies, 

which require additional investments to maintain grid reliability and efficiency, should be 

recognized in cost/benefit analyses. 

1.05. Demand-Side Management (DSM) Programs, Energy Efficiency Measures and 

Distributed Energy Resources 

The NAM believes that the provision of cost-effective DSM services by customer and 

aggregator programs, energy efficiency measures, and distributed energy resources can help 

ensure a reliable and adequate electricity supply at a lesser cost. Investments in and 

opportunities for technologies and measures that enable customers and aggregators to provide 

such services should not be precluded. The NAM also believes that electric and natural gas 

utilities should not be precluded from meeting future electricity and natural gas needs with these 

technologies and measures. Utilities also must not be precluded from recovering prudently 

incurred costs when implementing these programs, measures and services, and nondiscriminatory market opportunities for DSM services and distributed energy resources. 

Unreasonable barriers to customer choice of power generation and efficiency improvements, 

including distributed generation, should be minimized. The NAM encourages cost-effective 
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information exchanges that support demand-side management through data exchange between 

utilities and customers. 

1.06. Hydroelectric Power 

Hydropower is a renewable resource that has demonstrated capability to provide affordable 

electricity In areas where nature provides such opportunities, and effectively complements the 

nation's other fuel resources to meet U.S. energy needs. Although hydro contributes a relatively 

small percentage of the nation's energy supply, it is a significant percentage of the renewable 

energy supply. It is energy efficient, with energy conversion efficiency in the range of 85-95 

percent. The NAM supports the continued use and development of hydropower resources. 

The NAM supports the streamlining of the regulatory process for hydroelectric power 

development through the elimination of redundant or contradictory regulatory steps and avoiding 

the Imposition of conflicting clauses in other legislative initiatives such as those related to clean 

air, clean water and endangered species. 

With regard to hydro projects owned and operated by the federal government itself, efforts to 

offset their impact on fish and wildlife (including Endangered Species Act initiatives) must be 

carefully balanced with the preservation of economic, recreational and public safety goals. 

1.07. Nuclear Energy 

Nuclear power is a safe and vital source of cost-effective base-load electricity that does not emit 

criteria pollutants or greenhouse gases into the atmosphere. It is the largest source of nonemitting power generation in the United States and a major source of electricity for 

manufacturers. The NAM supports the continued development and operation of nuclear energy 

consistent with the protection of public health and safety. 

Nuclear energy helps ensure reliable and affordable electricity as part of a diversity of fuel 

sources. As the demand for electricity in the U.S. continues to grow, the NAM supports the 

construction of additional nuclear power plants that have been approved by the Nuclear 

Regulatory Commission to maintain a diverse portfolio of generating resources. The NAM also 

supports advanced nuclear technology for use in manufacturing as a source of carbon-free 

process heat. 

In supporting the continued use and development of nuclear energy in the United States, the 

NAM supports the construction and operation of facilities covering all parts of the fuel cycle and 

nuclear energy generation, including power plants, fuel enrichment facilities, fuel fabrication 

plants, low-level and high-level waste handling and disposal operations, and other related 

facilities critical to supporting and expanding the nuclear energy industry. 

The NAM supports policies that move the federal government to fulfill its legal obligation to 

remove used fuel from commercial nuclear power plants and manage its long term disposal. We 

support the research, development and demonstration of technologies to close the fuel cycle 

while a permanent disposal facility, which is needed even if the fuel cycle is successfully closed, 

is developed. The NAM encourages the development of interim storage facilities for 

consolidating used fuel until recycling or permanent disposal facilities, or both, are available. 

1.08. Energy Efficiency 

Manufacturers, including generators and users of energy, are committed to reducing our energy 

intensity and producing more energy efficient consumer products to help reduce the demand for 

energy, save money, lower costs and lessen greenhouse gas emissions. American society has 
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much to gain from sensible efficiency and waste reduction measures across all sectors of the 

economy. Manufacturers, including generators and users of energy, continue to seek 

improvements to the New Source Review (NSR) process to reduce barriers to installation of 

energy efficient technologies. 

1.08a.lndustrial Energy Efficiency 

Manufacturers use one-third of our nation's energy and are directly affected by the cost of 

energy in making products as well as by the cost of maintaining office operations. It is widely 

acknowledged that process and building system energy efficiency and conservation offer 

immediate and cost-effective opportunities to reduce energy cost inputs, reduce water use, 

stretch available energy supplies and decrease greenhouse gas emissions. 

Manufacturers have taken the lead in making energy efficiency a priority. Improvements in 

energy efficiency in the manufacturing sector have helped the country to be more efficient in 

energy use per unit of GOP and reduced the energy intensity of the U.S. economy. 

Manufacturers have achieved greater energy efficiency through cost-effective distributed 

generation, combined heat and power technologies, waste heat recovery systems, water reuse 

and recycling, high efficiency motor-driven systems, intelligent energy systems such as 

advanced metering infrastructure and demand response, and improved process manufacturing. 

The most significant federal actions to increase industrial energy efficiency in the long run are 

those that will create a positive, reliable and unbiased climate for capital investment financing 

tools and other energy services agreements for new and existing plants, buildings and 

equipment across all sectors. 

There is an important federal role to be played in basic research and development of new highrisk energy efficiency and waste minimization technologies in energy intensive Industries, 

particularly where private sector incentives may be inadequate. Federal policies should provide 

a reliable investment environment for businesses of all kinds and sizes to pursue proven energy 

management technologies, practices and services. 

The NAM believes that previous overly prescriptive federal energy policies have failed in large 

part because cost-effective industrial energy efficiency improvements are best left to individual 

businesses and the competitive marketplace. Industrial energy management is a complex 

moving target that includes process innovation, long-term quality planning, energy assessments 

of building and equipment purchases, linkage of water and energy efforts, employee awareness, 

and waste minimization and recovery. 

The NAM supports voluntary industry and market-driven benchmarking of industrial facilities and 

processes for the purposes of raising the level of awareness of best-in-class energy 

management possibilities. The NAM opposes the undue imposition of mandatory data collection 

programs. The federal role should be limited to supporting industry in the development of 

voluntary information exchanges. 

The NAM also opposes the imposition of mandatory industrial energy efficiency targets. Federal 

energy efficiency targets would have no meaning to most companies because manufacturing 

energy consumption varies dramatically from plant to plant. Product demand, weather, water 

availability, fuel price swings and capital investments, such as pollution control technology, 

influence manufacturing energy consumption. 
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The NAM supports federal programs that encourage and help manufacturers, especially small 

and medium-sized manufacturers, to understand and deploy energy efficiency and energy 

management measures for the purposes of becoming more competitive In a global marketplace. 

1.08b. Building Sector Energy Efficiency 

Manufacturers play a significant role in Improving the efficiency of commercial and residential 

buildings. Since the building sector consumes approximately 40 percent of all energy used in 

the United States, the NAM supports market, regulatory and institutional reforms that increase 

opportunities to better utilize advanced technology and energy management practices to boost 

energy efficiency in buildings. 

The NAM supports policies to enhance private sector investment In public building efficiency 

improvement projects, as well as policies that strengthen standards for existing commercial, 

industrial and residential buildings. These policies will: 

Promote consumer transparency through energy use labeling for buildings; 

Improve the existing national database of energy consumption information; 

Encourage open and visible access to energy usage and pricing; 

Partner with the private sector to support research, development and deployment of 

energy efficient technologies; 

Save taxpayers money by reducing government energy spending; 

Recognize and value energy efficiency investments; and 

Provide an incentive for states to update building codes. 

Finally, the role of cooperative government-industry initiatives will be crucial in developing 

innovations that transform current construction and retrofit methods into an approach that fully 

integrates energy efficiency. Hand-in-hand with this Is the development of techniques to 

maintain efficiency through the lifespan of buildings, including energy audit systems and 

techniques and best practice-sharing of both. 

1.09. Climate Change 

The NAM and our member companies are committed to protecting the environment through 

greater environmental sustalnability, Increased energy efficiency and conservation and reducing 

greenhouse gas emissions. We know the U.S. cannot solve the climate change issue alone. The 

establishment of federal climate change policies to reduce greenhouse gas emissions, whether 

legislative or regulatory, must be done in a thoughtful, deliberative and transparent process that 

ensures a competitive level playing field for U.S. companies in the global marketplace. 

Therefore, any federal or state government policies must protect the international 

competitiveness of the U.S. marketplace economy. Any climate change policies should focus on 

cost-effective reductions, be implemented in concert with all major emitting nations recognizing 

the need for leadership by the U.S., and take Into account all greenhouse sources and sinks. The 

NAM believes that federal climate policies generally should pre-empt state policies. 

1.09a. Carbon Capture (CCUS) 

The NAM supports continuing research, development and demonstration of carbon capture, 

beneficial use and storage (CCUS) technology as a means to facilitate expansion of the 
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domestic recoverable oil and insure continued availability for energy conversion of the abundant 

oil, gas, and coal on federal lands. Any carbon dioxide (C02) injection must not be classified as 

hazardous and permitting for injection must be streamlined and delegated to the states where 

the federal lands are located. 

1.10. Natural Resources 

U.S. manufacturers require access to natural resources, such as rare earth elements and other 

critical materials, in order to produce products that are vital to the U.S. economy. Moreover, 

these resources are essential for the U.S. to remain competitive in the global manufacturing 

economy. Competition for raw materials should be market-based and not distorted by 

unwarranted or biased government action. The NAM supports government policies and actions 

that allow manufacturers access to these vital resources, support R&D, encourage the mining 

and processing of such resources, and support unimpeded trade thereof. 

1.11. Energy Production from Federal Lands 

The NAM supports policies that facilitate the expeditious leasing, exploration and development 

of the nation's fossil energy resources in an environmentally compatible manner. These national 

resources on public lands are essential to our country's economic growth by insuring affordable 

and reliable energy for our homes and manufacturing facilities. The NAM opposes efforts to 

unnecessarily further restrict access to these national resources. The oil, gas, coal, oil shale, 

geothermal and uranium leasing programs, which have historically been inconsistent in their 

administration, have limited the potential to use a wide range of energy resources that lie 

beneath federal lands. A long-term, stable and reliable leasing policy must be maintained. The 

NAM therefore supports streamlining and expediting energy resource leasing and policies that 

limit royalties and fees to cost recovery for administration of the leasing programs. 
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ERP-02 Environmental Quality and Sustainability 

The NAM is committed to protecting the environment and to environmental sustain ability, and 

fully supports the ongoing national effort to protect our environment and improve public health 

through appropriate laws and regulations. American industry has established a strong record in 

environmental protection: as the foundation of communities, manufacturers have made 

substantial investments over time to minimize their environmental footprint, and continue to do 

so today. This commitment to innovation will ensure further progress toward reducing 

environmental impacts and increasing sustainability in operations. 

A high standard of living depends upon a healthy environment, robust economic growth and an 

adequate and secure supply of energy at globally competitive prices. Quality of life 

encompasses complex economic and social considerations, including clean air and water, 

conservation of material and human resources, as well as continued economic development. 

Environmental laws and regulations should be designed with utmost care to ensure that they 

are effective in achieving their desired objectives while at the same time avoid unnecessary 

adverse economic and social impacts. 

Accordingly, measures to protect environmental quality should: 

Address an identified need and be based on facts, credible science and least cost 

means of implementation; 

Be based on factual data, with due regard for their total impacts on employment, energy 

used, resources, land use and other regional, national and international social and 

economic concerns; 

Promote innovation and recognize that technological advances over time have generally 

reduced the environmental impacts of energy production and consumption; 

Recognize the technological advances made by manufacturers and allow for a proper 

balance between economic growth and the protection of our environment; 

Take into account all future challenges, such as those posed by climate change and a 

changing environment, as well as those posed by the limitations of existing technologies; 

Utilize sound science and appropriate risk management processes to better focus our 

national effort and resources on environmental problems that pose a truly significant risk; 

Employ rigorous economic analysis to better understand potential economic impacts and 

cost-benefit relationships; 

Include a careful review and evaluation of the compliance timeframes that manufacturers 

are given to meet new standards or regulations; and 

Integrate a complete cumulative analyses of regulations' impacts on regulated 

industries, manufacturers and the economy. 

2.01. Principles for Sustainability 

NAM member companies are committed to advancing sustalnability efforts that positively impact 

manufacturing and Industry's contributions to environmental protection, economic performance 

and the social well-being of the employees, communities, customers and consumers they serve. 

NAM members recognize these challenges and will respond by encouraging the adoption of 

sustain ability best practices and application of life cycle analysis practices in the manufacturing 

sector. NAM members will work proactively with relevant stakeholders to ensure that the voice 

of manufacturing is heard and is contributing its positive story. 
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NAM members support the following principles for sustainability in manufacturing: 

Sound economic, social and environmental performance is an element of sustainable 

companies; 

Encouraging research, development and deployment of innovative, cost-effective 

technologies and operational improvements that will enhance sustainable manufacturing 

activities; 

Improving water efficiency; 

Minimizing natural resource impacts by increasing efficiencies and conservation to 

optimize raw material input and to reduce waste output; 

Continuing to improve the environmental, health and safety profile of manufacturing and 

its workforce by improving performance processes and products; 

Recognizing action taken by companies who are leaders in implementing voluntary 

sustainability practices and procedures; 

Managing land use and natural resources to provide economic benefit while protecting 

biodiversity; 

Collaborating and interacting with supply chain members to responsibly manage total 

environmental impacts; and 

Building sustainable practices to support, attract, develop and retain a highly skilled, 

diverse workforce. 

2.02. Standards 

Standards serve an important role by providing for consistency of approach and quality of 

outputs for society. Standards should not be narrowly based on a single environmental medium, 

but should take into consideration cross-media impacts that may occur when a standard results 

in the mere transfer of a pollutant from one medium form to another. Standards should reflect 

the fundamental difference between corrective programs, which involve retrofitting of existing 

facilities, and preventive programs, which involve the construction of new facilities and 

manufacture of new products. In those instances when standards are technology-based, each 

standard must be technically proven, achievable and cost effective. Once technology has been 

installed in compliance with current regulations, the installer should not be arbitrarily subjected 

to changed regulations for a reasonable period of time, taking into consideration the useful life 

of the equipment. 

2.03. Hazard Identification, Risk Assessment and Risk Management 

The ability to systematically and effectively identify hazards, assess risks and manage those 

risks is critical to successful industrial activity. Those processes include the application of 

scientifically sound hazard identification and prioritization, objective, credible risk assessment, 

benefit-cost analysis, flexible, efficient and cost-effective risk management, and adequate 

opportunity for meaningful public participation in the risk assessment process. 

Governments need to recognize the costs for environmental protection compete in a society 

with finite resources to address diverse worthy goals. Environmental laws and regulations 

should be based on scientific criteria resulting in cost-effective measures that provide significant 

environmental or human health benefit. 

2.04. Compliance and Enforcement 

NAM recognizes that enforcement is a critical component of any environmental protection 

program. Great advances in environmental protection have resulted from practical, cooperative 

programs between regulated entities and regulatory agencies. As environmental problems 
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require more technically complicated solutions and the global business environment becomes 

more competitive, greater emphasis should be given to such cooperative approaches and to 

providing compliance guidance before violations occur. The consequences of non-compliance 

should be proportionate to the violation and the consequences should drive compliance and 

prohibit recurrence of violations. Further, enforcement actions should not be used by regulators 

to extract improvement and investments in excess of regulatory requirements and permit 

conditions. 

The government should continue to develop and implement methodologies to measure 

compliance with environmental regulations and associated environmental improvements. 

Decreased violations should be viewed In light of improved compliance rates and not as an 

enforcement failure. Enforcement should be applied consistently and equally to ensure fair 

competition. 

Enforcement policies should recognize the need for regulatory flexibility when unique 

circumstances exist or unforeseen events occur. The federal government should work with 

states to be more flexible for federal laws and regulations, while enforcement at the local level 

should be consistent within a state. 

Citizen suits can be contrary to sound principles of regulatory law whereby clear standards of 

conduct are formulated and enforced by a regulatory agency subject to a right of judicial review. 

Citizen suits introduce uncertainties to pollution control enforcement policies, dissipate 

resources needed to carry out effective regulatory programs, stimulate litigation and are subject 

to exploitation. If allowed, such suits should be limited to local persons with affected interests in 

order to eliminate suits brought for nuisance or harassment purposes. The courts should not 

approve settlement agreements between regulatory agencies and plaintiffs In citizen suits that 

were negotiated without the full participation of affected regulated entities. 

2.05. Proprietary and Confidential Information 

The protection of proprietary and confidential information is of utmost importance to American 

industry at all government levels. Confidential Business Information (CBI) should be given the 

full protection intended by Section 1905 of Title 18 of the U.S. Code. Because of the need to 

protect trade secrets and other CBI, as well as the need to minimize paperwork burdens, 

information collection requests by federal agencies and their contractors should comply with the 

spirit and letter of the Paperwork Reduction Act. There should be no exception for surveys 

made pursuant to settlement agreements in citizen suits. 

2.06. Hazardous and Non-Hazardous Waste Management 

Waste products are generated by all segments of society, including industrial facilities, 

commercial establishments, residences and federal, state and local government agencies. To 

help ensure environmental protection and public health, the NAM supports a comprehensive, 

efficient and effective hazardous and non-hazardous waste management regulatory system that 

includes an accessible and affordable infrastructure. These systems should be implemented in 

ways that ensure effective environmental protection, but minimize complexity and administrative 

burden. 

The Environmental Protection Agency (EPA) has developed a comprehensive regulatory 

program for the management of hazardous and non-hazardous wastes pursuant to the 

Resource Conservation and Recovery Act (RCRA). In addition, the NAM supports significant 

voluntary industrial waste minimization initiatives that minimize volume, reduce toxicity and 

encourage recycle, reuse and reclaim processes to minimize waste. 
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2.D6a. Regulatory Process for Waste 

It is imperative that the distinction between hazardous and non-hazardous waste, as well as the 

distinction between waste and non-waste, is clarified. Regulations should be tailored to address 

the different types of waste appropriately. Responsible management of hazardous and nonhazardous waste demands that government, the public and industry cooperate in assessing and 

managing risk and ensuring regulations support various waste activities accordingly. 

The NAM recognizes the primary rights and responsibilities of states regarding land use 

decisions. The federal government should encourage and support states in their efforts to locate 

private and public waste management facilities properly within their own jurisdictions. Economic 

development is dependent on adequate and properly safeguarded waste management facilities, 

including incineration, landfills and other treatment, storage, disposal facilities (TSDFs). Private 

ownership and operation of such facilities is desirable. 

State responsibility for providing adequate waste disposal and treatment capacity is also 

recognized by federal law. Federal sanctions requiring states to meet this duty to public health 

and the environment are appropriate and should be vigorously enforced. 

2.D6b. Waste Management Methods 

Adequate management capacity and techniques must be encouraged by the federal 

government in proportion to the development of new disposal requirements. No reasonably safe 

method or facility should be banned or prohibited until such time as superior alternative methods 

and facilities are available to handle the displaced hazardous and non-hazardous waste. The 

ability of some methods of managing hazardous and non-hazardous waste to mitigate 

environmental and health hazards has been questioned. When methods are shown to be 

ineffective and pose an unreasonable risk to human health and the environment, their 

authorized use should be discontinued. 

2.D6c. State and Federal Responsibilities Regarding Waste 

State agencies are in the best position to consider and act upon local environmental needs and 

should have primary responsibility for creating and enforcing hazardous and non-hazardous 

waste management programs. Under existing law, these programs must be at least equivalent 

to the requirements set out under RCRA. 

The NAM supports the EPA's delegation of and state assumption of regulatory authority over 

hazardous and non-hazardous waste management programs, so long as environmental 

protection is assured and the states maintain a consistent approach to regulating these 

programs. 

2.D6d. Interstate Transport of Waste 

The commerce clause of the U.S. Constitution precludes the states from regulating interstate 

transport of waste. Companies need maximum flexibility to determine where to dispose of 

wastes for purposes of waste minimization, recycling, reclamation or treatment consistent with 

federal regulations. Bans, differential fees and other limiting barriers would prove detrimental to 

that flexibility. 

2.07. Chemical Safety 

The NAM supports human health and environmental protection and is committed to ensuring 

that chemicals and other products are developed, manufactured, distributed and used safely. All 
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stakeholders-including government, the private sector, and concerned citizens across the 

country-must be involved to make this effort a success. 

NAM members are committed to manufacturing safe, innovative and sustainable products that 

provide essential benefits to consumers while protecting human health and the environment. No 

goal is more important than safety to manufacturers. Product safety provides the foundation of 

consumer trust, and manufacturers devote significant resources to achieve this goal. 

Environmental, health, and economic impacts should be reviewed and evaluated in all proposed 

regulations. Economic and societal benefits and costs should be considered in risk 

management determinations. It is of the utmost importance that innovation, safe product 

development and affordable consumer choice be encouraged and unnecessary barriers 

avoided. 

2.07a. Toxic Substances Control 

The regulation of toxic substances should be administered in a manner that protects health and 

the environment while avoiding unnecessary adverse economic impacts on business 

enterprises. The NAM supports chemical reporting requirements that reduce complexity and 

ensure that reporting occurs at the point of raw materials import in order to coordinate efforts 

and make global supply chains more transparent. It is of the utmost importance that barriers to 

innovation and new product development be minimized. 

The U.S. chemical management system should be based on credible scientific information. 

Chemicals posing the greatest demonstrated risk should be targeted through prioritization of 

chemicals in commerce. Risk to sensitive subpopulations, such as children, should be 

considered in this process. Tiered and targeted testing should be conducted if necessary 

information is lacking, and a risk-based process should be used to assess if a chemical is safe 

for its intended uses. Regulation and prioritization should consider the degree of hazard and 

reasonable exposure potential associated with intended uses; provide reasonable timeframes 

for compliance; and ensure transparency, clarity and stakeholder participation. 

To ensure the flow of interstate commerce, the U.S. chemical management system should be 

maintained at the federal level to establish and enforce consistent requirements among federal 

agencies and states. A "patchwork" approach to chemical management, in which individual 

states have their own chemical requirements, is ineffective, is contrary to principles of free 

interstate commerce, and decreases the competitiveness of U.S. businesses. To avoid overlap, 

policies should be coordinated to establish consistent standards and requirements, enhance 

protection of the public, promote innovation and competitiveness, and avoid duplication, public 

confusion and unnecessary negative economic impacts. 

2.07b. Use and Source Reduction 

Restrictions on manufacturing inputs will reduce the ability of domestic producers to compete in 

U.S. markets and to supply important export markets. The NAM opposes mandated taxies use 

reduction (TUR) because manufacturers are in the best position to determine what products to 

manufacture and how to make safe, reliable products. 

As a regulatory approach the NAM supports risk management to control the use of chemicals. 

The NAM opposes phase-outs and bans on the production and use of specific chemicals 

without a determination of unreasonable risk. Reduction or elimination of chemicals should not 

be based on toxicity levels or listing rather than risk. The beneficial uses of chemicals to society 

should be carefully considered in attempts to eliminate risk, as greater or different risks might be 

incurred from alternatives or their absence. Compliance timelines should provide ample 
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opportunity for strategies that result in environmental benefit and innovation or that strengthen 

U.S. competitiveness. 

2.07c. Integrated Risk Information System (IRIS) 

IRIS assessments must be transparent: peer reviewed, subject to robust public comment and, 

when appropriate, subject to enhanced scientific analysis and methods. IRIS must rely on the 

best available scientific information regarding hazard and exposure, employ consistent and 

objective methods and models, utilize transparent procedures for evaluating data quality and be 

uninfluenced by policy. Public involvement should begin at the problem formulation stage. 

2.08. Superfund Reform Principles 

NAM members have a substantial interest and concern regarding the requirements and 

operations of the Superfund program. While the NAM supports Superfund's goal of protecting 

human health and the environment, the Superfund program often requires an extraordinary 

investment of resources to obtain limited, if any, environmental benefits. Private sector spending 

on superfund also uses funds that could be invested in people, plants and equipment. 

Retroactive imposition of liability, application of joint and several liability to unrelated parties, 

and imposition of effectively perpetual liability violate basic principles of equity and cripple 

efforts to remediate sites by spurring litigation. 

If Superfund is to achieve its goals in a cost-effective manner, legislative reform should be 

based on the following principles. First, provide that Superfund is to be used only for sites that 

present real, significant risks to human health or the environment and that cannot be remediated 

in a timely manner under other programs, including state voluntary cleanup programs. Second, 

consistent with the Supreme Court's decision in Burlington Northern v. EPA, responsible parties 

should be held liable only for their fair share of the response costs unless there is no legitimate 

basis to allocate liability among the responsible parties. 

Congress should construct a fair, broad-based funding system that recognizes that the public 

and private sectors, as well as individuals, have contributed to the creation of Superfund sites. 

Superfund sites resulted from manufacturing processes and disposal practices that benefitted 

society, such that the social costs of cleanups at sites without viable responsible parties should 

be spread over a broad spectrum of taxpayers. Congress should avoid where possible 

piecemeal reauthorization of Superfund, such as granting carve-outs from liability for 

municipalities. These will only further damage the program. EPA and states should select 

remedies based on sound science, realistic risk assessments and practical solutions. The law 

must recognize the limits of present technology, the need for practical solutions and site-specific 

risk assessments that focus on actual or probable exposure scenarios. Congress should limit 

recoveries for natural resource damages to the amounts needed to restore, replace, or acquire 

the equivalent of any injured natural resources. Finally, Congress should provide complete relief 

from future liability for a party who remediates a site. 

2.09. Product Labeling and Marketing Standards 

A product label, when correctly used and understood by consumers, can facilitate consumer 

understanding. The NAM supports voluntary environmental labeling designed to communicate 

the following: achievement of meeting a standard or criteria; a characteristic for which no current 

national standard exists; manufacturers' commitment to the environment and protection of 

human health; the shared responsibility of government, industry and the consumer to create and 

support the recycling infrastructure; and information pertaining to recyclability, reuse and use of 

recycled materials. 
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The NAM encourages the use of uniform, national standards for voluntary labeling. 

Product claims should be substantiated by the manufacturers. These claims should be 

supported by uniform, generally accepted definitions and technical standards. The NAM 

supports enforcement against fraudulent or intentionally misleading claims. Enforcement of 

labeling should be conducted by the Federal Trade Commission with technical guidance from 

the appropriate governmental entities, industry and considering all other technically accurate 

information. 

2.10. Water Quality Control 

The Federal Water Pollution Control Act, as amended by the Clean Water Act, established the 

objective to restore and maintain the quality of the nation's waters. Through limitations on 

wastewater discharges, water quality in the U.S. has significantly improved. American industry 

has made a major contribution to this national effort and will continue to support this objective. 

2.10a. Pretreatment 

The Clean Water Act requires the establishment of pretreatment standards by the EPA for 

pollutants that interfere with, pass through or otherwise are incompatible with a Publicly Owned 

Treatment Works (POTW), as well as for those pollutants that prevent sludge use or disposal by 

such works. These standards are uniform, with no provision for adjustments. 

A POTW is a public utility that is financially supported by industry, commercial establishments, 

Institutions and residences. Like other such utilities, POTWs provide necessary services that 

support employment and economic growth. Many NAM members rely on the services provided 

by POTWs and thus have an interest in their efficient and continuous operation. The NAM 

supports pretreatment where it is demonstrably required to protect the operation of the POTW, 

prevent discharges that would violate the POTW's permit, or prevent the generation of sludge 

that would not meet regulatory standards. 

The NAM also supports equitable user charges that are based on the true cost of treating a 

company's wastewater. The NAM further supports pre-treatment programs that incorporate the 

flexibility needed to respond to local conditions in cost effective ways that meet the goals of the 

Clean Water Act. 

The NAM specifically recommends that: 

POTW authorities be allowed to implement their own pretreatment programs, which 

would include the establishment of local pretreatment standards as necessary to meet 

established permit conditions; 

All POTW National Pollutant Discharge Elimination System (NPDES) permits be 

enforced in the same manner as industrial NPDES permits, placing the responsibility for 

POTW discharges on the municipality in those cases where non-compliance results from 

POTW deficiencies as opposed to violations of permit limits by indirect dischargers. Noncompliance costs should be allocated accordingly; 

The EPA should retain a role in pretreatment by issuing guidelines to assist POTWs in 

understanding the elements of the programs necessary to meet the established permit 

limitations; 

States should be the primary enforcers of POTW permits. Only after a state and POTW 

have failed to Initiate action within a reasonable time after violation of the POTW's 

NPDES permit should the EPA become involved; and 
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Each POTW should be solely responsible for its relationship with its customers. Federal 

or state agencies should not unduly interfere with decisions POTWs make to ensure 

adequate treatment of discharges from industrial customers; 

The NAM also recommends that the EPA consider integrated facUlties when establishing 

categorical pretreatment standards. Some industries have diverse manufacturing operations 

that are subject to more than one categorical pretreatment standard. In these "integrated 

facilities," it may be more cost-effective to combine waste water from each individual operation 

for treatment purposes. However, categorical pretreatment standards that apply to separate 

wastewater streams can be a barrier to such cost-effective pretreatment methods. 

2.10b. Best Available Technology (BAT) Economically Achievable 

The installation of pollution control equipment by U.S. industry to meet current legal limits has 

resulted in major improvements in water quality. The NAM believes that the Clean Water Act 

should be implemented in a manner that protects human health and the environment while 

avoiding costly treatment requirements and other restrictions on industrial discharges that result 

in little, if any, additional benefit to the quality of U.S. waters. BAT can be defined, in effect, as 

the best control and treatment measures that have been or are capable of being used. Given 

the efficacy of existing treatment facilities in removing toxic pollutants and the unrealistic 

statutory deadlines for establishing toxic effluent limitations, the NAM makes the following 

recommendations: 

BAT limitations should be required only where there is a significant taxies problem. 

"Significant taxies problem" should be defined where present limitations are not 

protecting receiving waters and where further abatement of taxies would have a 

measurable, positive effect on receiving waters. Situations where a pollutant is present 

in the effluent solely as a result of its presence in intake waters should not be considered 

a significant taxies problem; 

Additional requirements for non-conventional pollutants should not be applied unless 

required to meet water quality standards; and 

A risk-based approach to the regulation of effluent discharges should be adopted. 

2.10c. Nonpoint Source Pollution 

The relationships between and relative impacts of point and nonpoint sources differ from one 

part of the country to another, making it difficult to establish a uniform program. What is needed 

is a balanced approach to point and nonpoint problems that focuses on the water quality of the 

watershed in question. The NAM, therefore, supports the following: 

More extensive treatment should not be required of any point source dischargers in lieu 

of regulating non point sources if such treatment will have no appreciable impact on the 

quality of the receiving waters; and 

Effective management of nonpoint sources of water pollution should be achieved 

through state and regionally developed programs, taking into account regional 

differences. The EPA should provide technical and funding assistance, but should not 

attempt to assume the role of developing a uniform federal non point program. 

Congress should stress the need for improving the capability to assess the nation's water 

quality, to aid in determining the relative impact of point and non point sources on water quality 

and the ability of waters to meet their designated uses. Conclusions derived from the data can 

then be used to better allocate the nation's resources in achieving our water quality goals 
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2.10d. Clean Water Act Jurisdictional Issues 

The NAM supports the continued use of the term "navigable waters" in the Clean Water Act and 

opposes overly broad interpretations of that term and the term "waters of the United States." 

The term "waters of the United States" should be interpreted to mean waters that are navigable 

in fact or that have a relatively permanent surface connection to a water that is navigable in fact. 

The NAM opposes expanded federal jurisdiction over "all intrastate" and "intermittent waters" on 

the grounds that it raises constitutional concerns and contravenes the intent of the authors of 

the Clean Water Act. The NAM supports continued federal-state partnerships as an effective 

means of implementing the goals of the Clean Water Act. 

2.10e. U.S. Coastal and Ocean Resources 

The NAM supports multiple uses of the nation's coastal and ocean resources. Current federal 

environmental statutes allow the nation's coastal waters to be used for purposes ranging from 

resource development to recreation and conservation. An overly prescriptive coastal and ocean 

resources policy will undermine the careful balancing of diverse interests and uses of this very 

important resource. In particular, Coastal and Marine Spatial Planning should be an 

informational tool only. It should not be used to preclude economic uses of oceans, the Great 

Lakes and coastal areas or to block permits for such uses, while balancing the need to protect 

these vital natural resources. 

2.10f. Total Maximum Daily Loads (TMDls) 

As part of the development of TMDLs, states should assess the technical feasibility and 

economic practicability of attaining the water quality standard, based on the social and 

economic impacts of the costs of compliance. TMDL allocations should be developed for 

pollutants only where appropriate. Other tools should be considered to achieve compliance with 

applicable water quality standards 

2.10g. Whole Effluent Toxicity (WET) 

The WET program should be based on scientifically sound criteria and implemented in a 

manner that requires monitoring and follow up actions only when needed. WET program 

implementation should appropriately account for the variability inherent in WET testing. 

2.10h. Spill Prevention, Control and Countermeasure (SPCC); Definition of Oil 

Clarification 

Further clarification of the term "oil" as it pertains to the SPCC regulations is needed. While the 

Coast Guard has provided guidance on what constitutes "oil," the EPA has not. Without a 

consistent definition or determination process, it is often difficult for industry to comply with the 

SPCC regulations. Some facilities might rely on the Coast Guard's guidance, but an EPA 

inspector may disagree with the Coast Guard guidance and find the company to be in violation 

of SPCC regulations. Given these conflicts, overly conservative assumptions drive up SPCC 

compliance costs. 

The EPA's overly broad Interpretation of what constitutes a "water of the United States" when 

determining whether a facility is subject to the SPCC regulations results in uncertainty and 

increased costs. The EPA should clarity that SPCC regulations apply only to facilities that have 

a potential to discharge oil to waters that are navigable in fact or that have a relatively 

permanent surface connection to water that is navigable in fact. 

2.11. Groundwater Policy 
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State governments should retain the principal control and management responsibility for 

groundwater. Groundwater protection strategy requires a high degree of flexibility and 

responsiveness to local conditions. The availability of adequate supplies of groundwater for 

human consumption as well as industrial, agricultural and municipal uses is critical. Multiple 

groundwater uses must be protected from the potentially adverse effect of municipal, industrial, 

agricultural and other non point sources such as septic tanks, surface runoff and antiquated 

sewage systems. Due to the ubiquity of municipal and non point sources of groundwater 

contamination and to the impracticality of a zero release standard in most activities, protection 

strategies should be based on a use classification of aquifers. 

Industrial substances, discharges and releases potentially affecting groundwater are subject to 

comprehensive regulation through provisions of the Safe Drinking Water Act, FIFRA, RCRA and 

other state and federal statutes. Federal groundwater initiatives must build upon rather than 

ignore or duplicate this body of law. In particular, the toxicity, exposure and risk assessments 

required for listing and standard setting under current law should be preserved. The NAM 

opposes any attempt to expand the applicability of these or other environmental laws to reach 

activities with statutory exemptions. Any expansion of EPA authority over statutorily exempt 

activities must originate in Congress. 

The objective of groundwater policy should be to manage this valuable resource for multiple 

uses. Drinking water standards are relevant criteria only when there is human consumption of 

the water. Treatment after extraction or conversion to alternative water supplies may be 

prefenable to large scale groundwater aquifer treatment efforts. Natural attenuation also is a 

viable alternative to pumping and treating remedies. If a groundwater aquifer treatment effort 

already is underway, the NAM recommends that the EPA review the remedy to detenmine if 

alternate, less energy intensive options are available. 

When aquifer cleanup is selected, the principle of "the polluter pays• should prevail, whether an 

individual, agriculture, government or industry is responsible. State and local governments, as 

representatives of the public, should bear the full costs attributable to their own activities and to 

non point source contamination. 

Government should continue to encourage the development of improved technologies for 

recycling and/or destruction or safe treatment of hazardous wastes, and thereby help prevent 

groundwater contamination and avert costly cleanup efforts. Government should also undertake 

a prognam of public education on the causes of non point source pollution in order to get public 

cooperation in reducing these sources. 

Land use, transportation planning, regulation of commercial, residential and industrial 

development, and, in some regions, control over water withdrawal and allocation are essential 

elements of any non point source pollution abatement prognam. These matters have traditionally 

and properly remained largely the domain of state and local governments. 

2.12. Water Conservation 

Manufacturers have demonstrated leadership not only minimizing environmental impact to water 

supplies but also helping to ensure adequate water supplies through conservation efforts. The 

NAM supports voluntary policies that take a multi-sectoral approach and drive the use of 

technology solutions and innovation toward water conservation efficiency and reuse to reduce 

potential risks related to water scarcity. 
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2.13. Air Quality Control 

The NAM believes that the objectives of the Clean Air Act to protect public health and welfare 

are desirable and supportable. The NAM believes the best strategy is to expeditiously identify 

and adopt technological innovations to continue to Improve our environment. 

American industry spends billions of dollars annually toward air quality protection and has 

achieved remarkable improvements in air quality. Increasingly, the Clean Air Act is being 

implemented in a way inconsistent with the original model of cooperative federalism, leaving 

states with a diminished role. The costs for individual nules are exponentially increasing, and 

manufacturers and other regulated sectors are left waiting years for courts to resolve 

overreaching regulations. Manufacturers are committed to clean air, but we need policies that 

support a sustainable environment and economy. The decades old Clean Air Act should be 

reformed and modernized to allow for continued improvements in air quality, while being flexible 

enough to better account for challenges created by extraneous factors such as foreign 

emissions, unique geography or topography and technological limitations and cost 

effectiveness. 

Because of the enormity of capital expenditure and operation and maintenance costs 

associated with compliance with federal air quality programs, the NAM believes that federal 

policymakers should consider thorough, balanced, sound and objective scientific studies before 

making regulatory decisions. The NAM also recognizes that manufacturers who make marketbased decisions to deploy energy efficient technology also reduce emissions that may fall under 

the jurisdiction of the Clean Air Act. The NAM recognizes that appropriate use of market-based 

mechanisms achieve environmental objectives more effectively and efficiently than commandand-control programs. 

As a general policy matter, the NAM supports streamlining air quality control regulations that are 

focused on the manufacturing sector. U.S. industry and regulators continue to struggle with the 

complex requirements of the New Source Review (NSR) program. NSR often triggers 

evaluations that can last for several years when a particular facility attempts to upgrade or install 

technologies that lead to increased energy efficiency, thus potentially undermining the 

achievement of appropriate air quality and environmental policy goals. Such obstacles undercut 

Improved air quality by delaying the installation of more efficient technology. The NAM therefore 

supports ways to streamline and reform NSR requirements, including the development of 

practical routine repair, replacement and maintenance exemption provisions. 

2.13a. National Ambient Air Quality Standards (NAAQS) 

The Clean Air Act requires federal regulators to review the National Ambient Air Quality 

Standards (NAAQS) for criteria pollutants, Including particulate matter and ozone, every five 

years. With the tremendous air quality progress made over recent decades, the NAM supports 

reform of the Clean Air Act to better address the current challenges that arise during the 

NAAQS review and establishment process. The NAAQS process should be modified to 

Incorporate a timeframe more consistent with 1) implementation schedules and 2) the lime 

necessary to adequately review the large volume of material relevant to review and setting 

standards. Implementation guidance and rules and updates to modeling and permitting tools 

should be in place when the NAAQS is changed or within a reasonable and defined amount of 

time. NAAQS should be set in a transparent manner with consideration of the public health and 

welfare, energy and economic impacts, and the standards should be set taking into account 

background (non-U.S. manmade sources) in order to provide the necessary flexibility for 

compliance. Furthermore, the NAM strongly supports review of the NAAQS by diverse and well 

qualified representatives of the scientific community with relevant expertise, based on sound, 
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peer-reviewed, objective studies. The EPA should not rely on internal re-analyses of published 

peer-reviewed studies if the EPA's re-analysis has not itself been individually peer reviewed and 

published. The NAM encourages the EPA to appoint a broad array of members to its 

independent advisory panels to promote rigorous and thorough study of proposed regulations 

based on sound science. 

2.13b. Emission Offsets and Controls Required in Non-Attainment Areas 

The basic rule in non-attainment areas is that no new major sources of pollution can be 

constructed without obtaining a permit that imposes stringent control requirements and requires 

sufficient "offsets" to assure progress toward attainment of the NAAQS. Offsets are enforceable 

emission reductions by existing sources of pollution that are applied to counterbalance the 

anticipated emissions from new sources. 

Offset requirements should be tied to reasonable and available reduction opportunities. 

Regulators should consider reasonable cost thresholds when establishing these requirements. 

In some U.S. locations, the availability of offsets is very limited and thus the cost is tremendous. 

The NAM believes that air quality goals should be commensurate to the expense associated 

with implementation of those goals. 

Federal regulators must recognize the general market principle of diminishing cost-effectiveness 

of new control technologies to meet more stringent requirements relative to the potential 

incremental health and environmental benefits obtained. Control costs increase exponentially to 

achieve minimal incremental benefits as regulators impose requirements approaching a level of 

"zero risk." 

2.13c. Hazardous Air Pollutants 

The NAM supports regulation of hazardous air pollutants that pose a threat to public health. 

However, any such regulation must be based upon sound scientific data that clearly 

demonstrate a need to protect public health and consideration of the welfare, energy and 

economic impacts. The EPA's inability to meet arbitrary deadlines should not trigger automatic 

regulation. The NAM supports comprehensive reform of the EPA's listing and delisting process. 

2.13d. New Source Performance Standard (NSPS) 

The NAM believes that NSPS should be streamlined and simplified to provide manufacturers 

with certainty that they are in compliance with the law. In addition, emission standards should be 

set using criteria that ensure optimal cost effectiveness and do not hinder economic growth and 

competitiveness. EPA should also allow adequate timing to demonstrate compliance once an 

NSPS is triggered. 

2.14.1ntemational Environmental Programs 

Varying environmental quality control requirements can affect the competitiveness of a nation's 

industries in world markets. In order to avoid distortions in international trade, the NAM supports 

cooperation in international notification and consultation when a nation proposes major changes 

to its environmental protection programs, as well as in the development of intelligent measures 

to deal with dislocation or inequities in international trade brought about by differences in 

environmental standards. Cooperation in gathering and disseminating environmental data and 

information should also be encouraged. 

2.15. Environmental Justice 

The NAM fully supports the non-discriminatory administration of environmental programs. 

Federal, state and local environmental agencies should administer and enforce all 
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environmental statutes and regulations in a non-discriminatory manner. The NAM recognizes 

the importance of economic prosperity to, and its interrelationship with, health and 

environmental protection. The NAM encourages its members to develop and maintain clear 

lines of communication with communities that host industrial facilities. More specifically, the 

NAM encourages manufacturers to work with local communities, local and state governments 

and the EPA to achieve an open and informed dialogue on their facilities' environmental 

performance, in order to assure healthy and safe communities in which they operate. 

Additionally, we support: 

The federal goal that no person in the United States shall, on the ground of race, color or 

national origin, be excluded from participation in, be denied the benefits of, or be 

subjected to discrimination under any program or activity receiving federal financial 

assistance; 

State efforts to increase dialogue among government officials, local communities and 

facilities in order to recognize and respond to community questions and concerns about 

facility operations; 

State development of public participation procedures that will respond to community 

concerns. State environmental justice procedures should include guidance for early and 

meaningful public participation. The concerns of interested citizens within the community 

should be addressed early In the regulatory decision-making process. For example, 

concerns should be addressed concurrently with the technical review of a permit 

application, rather than being relegated only to comments on proposed decisions or 

subsequent, wasteful litigation. States should document the public participation process 

within reasonable timeframes. State procedures also should assure and document 

appropriate due process and reasonable timeframes for permit applicants to address 

public participation concerns; and 

An EPA role in developing mechanisms to identify actual exposures to harmful 

substances using scientifically sound methodologies. The EPA should also assure that 

permitting under existing environmental statutes continues to be an agency priority. 

2.16. Facility Security 

As a nation, we have demonstrated firm resolve in protecting our critical infrastructures and key 

assets from terrorist exploitation. In this effort, government at all levels, the private sector, and 

concerned citizens across the country are involved in an important partnership and a 

commitment to action. 

The NAM members have a substantial interest and concern regarding requirements and 

administration of facility site security programs. NAM members prudently engage in risk 

management planning and invest in security as a necessary component of their business 

operations and to assure customer confidence. However, manufacturers have great concern 

about duplicative government security requirements and federal actions that do not take into 

account voluntary actions companies already implement. 

The term "security" means actions carried out to ensure or enhance the protection of 

manufacturing facilities' security-sensitive assets, including, but not limited to: employee training 

and background checks; protection of the perimeter of the facility; protection against and 

prevention of access to controls of the plant; installation and operation of intrusion detection 

sensors; and the implementation of measures to increase computer or computer network 

security. 
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As public policy or legislative proposals to authorize enforcement of security vulnerability 

assessments and security plans for private facilities are developed, the NAM recommends 

adherence to the following principles: 

Avoid chemical elimination or reduction schemes disguised as security measures. The 

NAM has seen legislation at both the state and federal levels that purport to be based on 

security concerns, yet the effect would be "toxic use reduction." The bills, prompted by 

misusing phrases such as "inherently safer technology" (1ST), ignore the commitment to 

improving safety at every phase of operations. Decisions about 1ST involve complex 

process safety issues that require a holistic approach. These judgments should be made 

by experts in the field rather than by government mandate. Initiatives that focus on 1ST 

distract from the real issue of security. 

Recognize security work that has already been implemented by companies and through 

safety and security management principles from their respective associations. It would 

be wasteful (and unfair) to require companies to add an additional governmental layer of 

bureaucracy onto existing industry programs, which often include requirements of other 

government regulations that include all the necessary components of security. 

Manufacturers should be deemed to be in compliance if they have implemented an 

industry standard that is determined to be substantially equivalent to the requirements of 

relevant federal security law. 

Consider provisions that would recognize work done under existing state, local and other 

federal regulations/laws. This would avoid disruption of the ongoing security work being 

completed by manufacturers under the approval of federal and state authorities. 

Chemicals should be exempted if they fall under an existing federal or state security 

regulatory program. 

Foster continued information sharing between manufacturers and federal, state and local 

officials in order to enhance security. Information submitted to the government must be 

properly safeguarded to ensure against release to the public. Such releases of 

information could undermine the very security that any legislation or information sharing 

would seek to enable. 

Promote and recognize voluntary cooperation and agreement among all parties and 

encourage voluntary actions. Partnerships are currently providing the foundation for 

developing and implementing coordinated protection strategies. 

Ensure some limitation of liability from civil lawsuits in the event of a terrorist act. No 

legislation or rule should be construed to create a private right of action or grant 

jurisdiction to a court that enables private persons to enforce the law or rule against 

anyone subject to it. Allow only those parties that are directly subject to a rule to bring a 

petition for review against a rule, not just "any person." 

Security investment reflects what is reasonable in light of threat and vulnerability 

conditions, as well as what is economically justifiable and sustainable in a competitive 

marketplace or in an environment of limited resources. 

Allow for flexibility in achieving standards established by legislation and recognize that 

the level of risk and the attractiveness of a target vary from facility to facility, even within 

the same industry. No federal program should take a one-size-fits-all approach to 

security and should instead recognize the variable nature of risk, allowing companies to 

achieve compliance in a way best suited to their particular situation. 

2.17. Recycling 

Recycling continues to be an environmental, economic and societal success story led by 

manufacturers, many of which utilize recycled materials on a daily basis to make new products 
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that add value to the economy. The private and public sectors have invested billions of dollars in 

infrastructure enabling citizens and businesses to reduce, reuse and recycle efficiently. 

Recycling helps numerous industries reduce their energy use, along with greenhouse gas 

(GHG) emissions. Recycling conserves non-renewable natural resources and raw material 

supply, creates jobs, contributes to the economy and offers consumers an efficient method to 

reduce their environmental footprint. 

The NAM supports the collection, processing and subsequent reuse of recyclable materials. The 

NAM supports the principles of sustainable materials management, consistent with sections 2.0 

and 2.05 of the NAM Environmental Quality and Sustainability Policy. The NAM supports life 

cycle thinking as a key tool for manufacturers making informed decisions and understanding the 

impacts of products including end of life options. 

No one-size-fits all approach works in recycling. Different commodities may require different 

approaches or solutions when looking at opportunities to initiate and/or increase recycling. The 

NAM supports initiatives to identify and promote best practices in capturing recyclable materials. 

Policies should recognize and, when appropriate, credit manufacturers for their use of 

renewable and recyclable materials in the manufacturing process. The NAM supports additional 

public education to help raise recycling rates and quality. 

Market forces should guide recovery and recycling systems: 

As with other goods and commodities, the NAM supports international free trade and 

open markets for recycling activities and materials. 

Voluntary actions can and should be part of the solution. 

The NAM supports policies that recognize the value of recyclable materials as economic 

commodities. 

IIHRP-01 Transportation Policy 

Transportation is the lifeblood of any economy. Transportation efficiencies, including adequate 

infrastructure and sound regulatory policies, can contribute greatly to national economic growth 

and competitiveness. At present, our transportation infrastructure is in a state of disrepair. The 

safe and efficient movement of freight and people across our country over land, water. or by air 

requires a renewed commitment to maintenance and expansion of our transportation 

infrastructure. 

1.01. National Transportation Policy 

The NAM supports transportation policies that: 

Emphasize safety: The public welfare, including the protection of life, property and 

productivity. warrants reasonable expenditures and regulations to address identified 

safety concerns in a cost-beneficial manner 

Ensure U.S. manufacturing competitiveness by providing increased federal, state, and 

local funding for maintaining, improving, and expanding public infrastructure: Excise 

taxes and other fees charged directly for transportation-related development should be 

used for transportation-related infrastructure expenses. And should encourage 
89 

Senator BARRASSO. Thank you very much, Mr. Eisenberg. 

Ms. Lipman, thank you. Welcome to the Committee. 

STATEMENT OF ZOE LIPMAN, 

DIRECTOR, BLUEGREEN ALLIANCE 

Ms. LIPMAN. Thank you, Mr. Chairman and members of the 

Committee. Thank you for the opportunity to testify today. 

The BlueGreen Alliance unites America’s largest labor unions 

and its most influential environmental organizations to solve today’s environmental challenges in ways that create and maintain 

quality jobs and build a stronger, fairer economy. In our work, we 

see that the innovation being carried out by workers and companies across America to meet our pollution and climate challenges 

is not just important to the environment, but is a critical driver of 

American competitiveness and job growth. 

Worldwide, the race is on to deliver better energy, transportation, and infrastructure that is efficient and lower emitting. The 

places that can meet these needs first, best, and can continue to 

do so into the future will have a powerful leg up in the future economy. 

We share the enthusiasm of others on this panel around the innovation happening today in America both to build the technology 

that cuts air emissions and to improve the manufacturing processes 

to make them more efficient and lower polluting. 

I want to talk today about what is needed to sustain this 

progress. 

We support the nation’s invaluable network of national labs and 

the critical energy and transportation technology programs at the 

Department of Energy that build on this expertise, and we underscore the critical importance of the agency’s commercialization and 

manufacturing programs that help ensure we turn innovative technology into equally innovative, globally competitive manufacturing 

and jobs in America. 

Thanks to efforts to improve the efficiency, emissions, and energy 

competitiveness of America’s most energy intensive industry, some 

of which have been mentioned already today, America’s steel and 

aluminum manufacturers, for example, are some of the cleanest, 

lowest emitting, and most productive in the world, while upholding 

good wages and high labor standards at the same time. Our tax, 

trade, and international agreements should help us support and defend the industrial leadership being shown by companies here, not 

undermine them. 

But equally important to sustaining the innovation we are seeing 

today in cutting air emissions are sound, long term, globally leading standards. A sound regulatory framework is critical to provide 

companies with the certainty necessary to make the large long 

term investments in innovation at scale. 

Regulations are working not just to cut air emissions, but to dramatically spur innovation, investment, and job growth. As proof, 

look no further than the car or truck in your driveway. 

Over the past decade, the auto sector has been transformed, as 

has already been mentioned; not just the car makers themselves, 

but the huge network of suppliers and manufacturing that is connected to them. Under the current fuel economy and vehicle greenVerDate Aug 31 2005 10:16 Jan 24, 2018 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\28078.TXT SONYA
90 

house gas standards, not only has the industry achieved unprecedented cuts in emissions, but the industry has returned to profitability and growth, and has built great cars, SUVs, and pickup 

trucks that consumers have snapped up at record levels. Fuel efficiency gains are saving drivers of all kinds of vehicles billions of 

dollars a year, enhancing America’s energy security, and underpinning a gradual recovery of U.S. manufacturing as a whole. 

In June we released a report of the Natural Resources Defense 

Council where we found over 1,200 factories and engineering facilities in 48 States and 335 congressional districts, and 288,000 workers building the specific technologies that go into improving fuel 

economy and cutting emissions in today’s cars and trucks. This is 

two and a half times as many factories and engineering facilities, 

and almost twice as many workers as we found in a similar study 

in 2011. But even that impressive growth doesn’t fully capture the 

recovery of a dynamic, innovative, far more competitive automotive 

manufacturing supply chain and industry. 

Take, for example, the Ford F-150. This is a very popular pickup 

truck, but it still only makes up a small percentage of the vehicles 

on the road. Nonetheless, the fuel saved by just the new F-150s 

built since the fuel economy standards began implementation in 

2012 cut carbon emissions equivalent to the total electricity use of 

the city of Boston. 

Achieving those gains required innovation not just in vehicle design and assembly, robotics, and training by Ford in Missouri and 

Michigan, but aluminum companies in Tennessee and Iowa, which 

developed and built new types of aluminum, aluminum treatment, 

and aluminum joining. Iowa and Indiana steel facilities developed 

and manufactured new lightweight, high strength steel for the vehicle frame. Ford holds several hundred patents for parts of the 

truck’s efficient EcoBoost engine and has made multiple rounds of 

retooling investment in the plants that build it. The company that 

makes the F-150’s efficient electric power steering faced bankruptcy in 2009, but today is the biggest employer in Saginaw County, Michigan. 

Just these few examples represent billions in automaker and 

supplier investment, and likely hundreds of millions above and beyond business as usual. They represent real factory investments 

and jobs coming back to communities all across America. 

We know what the tools are that have spurred this innovation; 

not just in transportation, but also in the energy and industrial 

sectors. Whether it is support for R&D and technology development, for commercialization, manufacturing and work force investment, or the clear regulatory framework necessary for companies 

to make these important investments in innovation. And we need 

to use them all to ensure that we invent the next generation of 

technology, build it here, and build good jobs in America doing so. 

Thank you very much, and I look forward to answering any questions you have. 

[The prepared statement of Ms. Lipman follows:] 

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Zoe Lipman 

Director, Vehicles and Advanced Transportation Program 

BlueGreen Alliance 

Zoe Lipman directs BlueGreen Alliance's Vehicles and Advanced 

Transportation Program and the organization's policy and 

research on related emerging technology, manufacturing and 

economic topics. 

Prior to joining BGA, Lipman headed National Wildlife 

Federation's policy and advocacy on fuel economy and 

advanced vehicles, and previously led NWF's Midwest climate 

policy program. Lipman has written on advanced vehicle supply 

chains, transportation and utility sector innovation, and the 

automotive recovery. She has served on utility, transportation 

and climate policy forums at a state, regional and federal level 

and works closely with labor, environmental, business and government stakeholders. 

Before joining NWF, Lipman worked in management consulting and as a trade union official in the US 

and overseas. Lipman holds a BA from Yale University and a Masters in Public Administration from 

Harvard's John F Kennedy School of Government. 
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Testimony of Zoe Lipman 

Director, Vehicles and Advanced Transportation Program 

BlueGreen Alliance 

Before the U.S. Senate Committee on Environment and Public Works 

November 15, 2017 

Mr. Chairman and Members of the Committee, 

Thank you for the opportunity to testify before the committee today regarding, "Promoting American 

Leadership in Reducing Air Emissions through Innovation." The BlueGreen Alliance (BGA) unites 

America's largest labor unions and its most influential environmental organizations to solve today's 

environmental challenges in ways that create and maintain quality jobs and build a stronger, fairer 

economy. In our work, we see every day that the innovation being carried out by workers and 

companies across America to meet our pollution and climate challenges is not just important to the 

environment it is a critical driver of American competitiveness and job growth. 

Worldwide, the race is on to deliver better energy, transportation, and infrastructure to more people in 

ways that don't pollute, are more efficient, and use fewer resources. The places that can meet these 

needs first, best, and can continue to do so, will have a powerful leg up in the future economy. Today we 

are seeing some powerful progress, but that didn't happen by accident. It was a combination of 

creativity and innovation, major investments and smart technology, manufacturing, and regulatory 

policy that made this possible. If we are going to protect and build on these gains, we are going to need 

to continue to use all the tools in our toolbox. 

We share the enthusiasm of others on the panel around the innovation happening in today in America 

both to build technology that cuts air emissions and to improve manufacturing processes to make them 

more efficient and lower polluting. 

We support the nation's invaluable network of national labs and the critical technology programs at the 

Department of Energy (DOE) that build on the expertise of the labs. These efforts bring together 

scientists and industry in collaborative initiatives around strategic technologies that become the jumping 

off place for a profusion of private sector products and processes. 

And we underscore the critical importance of commercialization and manufacturing programs like the 

Advanced Technology Vehicles Manufacturing loan program, the Advanced Manufacturing Office and 

programs at DOE, the Manufacturing Extension Partnership at Commerce, and others-that help ensure 

we turn innovative technology into equally innovative, globally competitive manufacturing and jobs in 

America. It's not enough to invent and use the best cleanest technology in America-we need to build it 

here too. 
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I'd like to note, in particular, our support for efforts to improve the energy efficiency and energy 

competitiveness of intrinsically energy-intensive heavy industry and materials manufacturing. The result, 

as you'll likely hear from other speakers today, is that America's steel and aluminum manufacturers, for 

example, are some of the cleanest, lowest emitting, and most productive in the world, while upholding 

good wages and high labor standards at the same time. In return, however, our tax, trade, and 

international agreements should also include sound environmental and labor standards that help us 

support and defend the industrial leadership being shown by companies here, not undermine them. 

But equally important to sustaining the innovation we're seeing today in cutting air emissions are sound, 

long-term, globally leading standards. A sound regulatory framework is critical to provide companies 

with the certainty necessary to make large long-term investments in innovation at scale. 

For a vivid example of how regulations have worked not just to cut air emissions but to dramatically spur 

innovation, investment, and the job growth that follows, look no further than the car in your driveway. 

Over past decade, the auto sector has been transformed-not just the car makers themselves, but the 

huge network of suppliers and manufacturing that is connected to them. Under the current fuel 

economy and vehicle greenhouse gas standards, not only has the industry achieved major 

improvements in efficiency and cuts in emissions, but the industry has returned to profitability and 

growth, and has built great innovative cars, SUVs, and trucks that consumers have snapped up at record 

levels. The major efficiency gains occurring in vehicles of all types are also saving consumers billions of 

dollars a year, enhancing America's energy security, and underpinning a gradual recovery of U.S. 

manufacturing as a whole. 

BGA is engaged in ongoing research that demonstrates that the standards, together with smart 

manufacturing policy, have been a critical driver of this innovation, investment, and growth, and are 

equally critical to sustaining it. 

In June, we joined with the Natural Resources Defense Council (NRDC) to release a report identifying 

manufacturers nationwide of the automotive technologies that specifically go into increasing fuel 

economy and cutting emissions. 

We found over 1,200 factories in 48 states and 335 congressional districts-and almost 300,000 

workers-building the clean and fuel efficient technology that goes into today's innovative cars and 

trucks. 1 

This is two and a half times as many factories and engineering facilities, and almost twice as many 

workers, as we found in a similar study in 2011. But even that impressive growth doesn't fully capture 

the recovery of a dynamic, innovative, far more competitive automotive manufacturing supply chain and 

industry. 

1 Natural Resources Defense Council and Blue Green Alliance, Supplying ingenuity II: U.S. Suppliers of Key Clean, Fuei~E/fident Vehicle 

Technologies (June 2017). Available: !ill~ /www.bluegreenalliance.pr~urces/supplying-ingenuity-ii-!,J:.?_:~_\-IJ:l.RJL~r~.-_gJ~.~~Y.:.~Iean-fueltlltlcJent-vehicle-techno!ogiru. 
94 


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For example, many in the public have probably heard that today's Ford FlSO pickup truck is more fuel 

efficient and more powerful than the same truck in 2010, and that that has something to do with the 

new materials the truck uses. In fact that truck-and virtually every new vehicle in America-is 

significantly lower polluting. The FlSO is a very popular vehicle, but still makes up only a small 

percentage of the vehicles on the road. Nonetheless, the fuel saved by FlSOs built since fuel economy 

standards began implementation in 2011 alone, cuts carbon emissions equivalent to the total electricity 

use of the city of Boston.' 

Achieving those gains required innovation not just in vehicle design and assembly, robotics, and training 

by Ford in Michigan and Missouri, but by aluminum companies in new types aluminum, aluminum 

treatment, and aluminum joining in Tennessee and Iowa (and many other locations). It required steel 

companies in Ohio, Indiana, and elsewhere to develop and manufacture innovative steel chemistries 

and processes to create the new light weight, high-strength steel for the vehicle frame. Ford holds 

several hundred patents for elements of the efficient EcoBoost engine, which powers the FlSO (and 

vehicles across its fleet), and has made multiple rounds of retooling investment in the engine plants that 

build it just since 2011. The company that makes the FlSO's efficient electric power steering faced 

bankruptcy in 2009, but today is the biggest employer in Saginaw county, Michigan, and is looking 

forward to lead in drive systems for autonomous vehicles as well. 3

.4 

Just these few examples-and they are just a few out of dozens if not hundreds in the FlSO alonerepresent billions in automaker and supplier investment and likely hundreds of millions of dollars more 

than business as usual. They represent real factory investments and jobs coming back to communities all 

across America, and they represent a rebuilt, innovative, interconnected, globally competitive 

automotive supply chain in America. Certain long-term leading standards are essential for companies to 

continue to be able to make these large, long-term investments, and to make them here. 

Worldwide, transportation technology is changing fast, and all across Europe and Asia countries are 

looking to lead in the next generation of vehicle technology. We have demonstrated in the U.S. auto 

sector that with the right tools, we can come back and lead. And this would be no time to take the foot 

off the gas. 

We need to keep the powerful trend of innovation going in the transportation sector, but this success 

also has lessons across the energy and industrial sectors. We know what the tools are-whether support 

for R&D and technology development, or for commercialization, manufacturing, or workforce 

investment; or the clear regulatory framework necessary for investment to innovate at scale-and we 

need to use them all, to ensure that we invent the next generation of technology, build it here, and build 

good jobs in America doing so. 

Thank you and I look forward to answering any questions you may have. 

2 BlueGreen Alliance, "Combating Climate Change 426,000 Pickup Trucks at a Time," June 2016. Available: 

https:/fwww. bluegreenalliance.org/resources/com bating-dimatechange-426000-pickup-truck.s-at-a-time/. 3 !bid. 4 Suppfying Ingenuity 11 
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7% of new verndes in In 2010 companies Controllers: UQM 

2015, rapidly were adding 6 - I! Goodyear, Technologies, 

expanding use. speed transmissions, Bridgestone, Renesas Wiring: 

Johnson Controls.. now 8 • 10 speeds. Michelin leoni$ Sumitomo 

Maxwell Technologies Aisin, Auto OEMs Electric 

Note: Many additional VS mnnu{acturer'>produt:e.ear:h technologies, lndi.ratorsof gwwth cue drawn {rom nqency, industry, and press report'!>. 
98 


28078.085

Senate Environment and Public Works Committee 

Hearing entitled, "Promoting American Leadership in Reducing Air Emissions Through 

Innovation" 

November 15,2017 

Questions for the Record for Zoe Lipman 

Senator Whitehouse: 

I. Do you think it is worthwhile to consider developing technologies that can draw C02 out 

of the ocean as well as the atmosphere? 

Lipman response: All across America- and in all industries and sectors of the economy- we 

are seeing scientists, engineers, workers and companies that are innovating to cut pollution, 

improve efficiency, and develop powerful, viable, and cost-effective solutions to climate change. 

These are not only critical tor the environmental and public health benefits they provide, but 

America needs to continue to lead in inventing, manufacturing, and deploying clean and carbonreducing technologies if we are to continue to secure and grow American jobs and 

competitiveness in a rapidly innovating global economy. 

This environmentally and economically critical innovation and investment includes technologies 

that capture carbon dioxide from industrial emissions, from the air, and from the ocean often 

while creating new commercially useful products. To meet both our global economic and 

environmental challenges at the scale we currently need, we must continue to innovate across all 

these areas. 

2. Do you agree that our national labs and research institutions would be an appropriate 

place to house this type of technological innovation? 

Lipman response: Absolutely. Our national labs play a critical role in innovation that spans 

advanced energy, transportation, and carbon reduction strategies. The Lawrence Livermore 

National Lab, for example, is innovating around C02 capture from the ocean, specifically. 

What's more, our National Labs, research institutions, and the Department of Energy in 

particular, have played a critical role- working together and with a wide range of academic, 

industry and other stakeholders- in ensuring that we don'tjust invent, but commercialize and 

build the leading technologies in America that are needed to meet global challenges like climate 

change and ocean acidification. 
99 

Senator BARRASSO. Well, thank you very much to all three of you 

for this very interesting testimony. 

We will start with questioning. I will start with a question for 

Mr. Coddington. 

It seems that many of the innovative technologies that are being 

applied by the private sector benefit from basic research and development conducted by the Federal Government and by our nation’s 

universities. This research has been especially beneficial when 

there is collaboration between industry, universities, government 

entities at both the State and the Federal level. 

So, can you elaborate a little bit on some of the partnerships between the University of Wyoming and businesses in Wyoming to 

support research, and how does this collaboration lead to more targeted and applied research? 

Mr. CODDINGTON. Mr. Chairman, thank you for your question. 

Yes, as you mentioned in your introductory remarks, the School of 

Energy Resources was created, in part, a decade ago to help build 

those bridges, and it is one of the benefits of being in the State of 

Wyoming, where you can cross the aisle and work collaboratively 

with partners and industry. 

Under most of the Federal grants that we are implementing, 

there is, in fact, a mandated cost share requirement that requires 

us to reach out for State dollars or private sector dollars on many 

of these projects. 

With respect to our carbon capture and storage projects, we are 

privileged to be teamed with two major utilities in the State of Wyoming, other oil and gas partners, drilling companies and the like; 

and indeed, I cannot think of a major project we have underway 

that does not have the participation and some role—typically 

major—of a private sector partner. 

We do very much have an economic focus. All research and development is good, but at the end of the day it has to be economic and 

work toward the public good, so you need that private sector input, 

and we are very sensitive to that. 

So, to conclude, UW is very proud of our collaborations with various entities in the State, including the private sector, and I don’t 

think we could do that work without them. Thank you. 

Senator BARRASSO. And Mr. Eisenberg, at a hearing held in September, David Greeson was here from the NRG Energy, and he explained the burdens that New Source Review posed to the Petra 

Nova carbon capture project. He spoke how New Source Review is 

a barrier because of the uncertainty the current regulatory framework presents to business. 

In your testimony today, you explained that New Source Review 

discourages emissions reduction projects in the manufacturing sector, as well as in the power generation sector. So, could you possibly elaborate a little bit further with maybe some specific examples? 

Mr. EISENBERG. Absolutely. Thank you. A lot of the same problems that the utility sector experiences on New Source Review pervade the same sort of upgrades that we are trying to do in the 

manufacturing sector. Most manufacturers have an industrial boiler in place, either steam turbine or a gas turbine, to produce energy and heat. The manufacturers of the control technologies for 

100 

those believe that there is a technology out there that are a series 

of upgrades that could improve the efficiency by 2 and a half percent that would result in about 6 and a half percent reductions per 

megawatt hour of greenhouse gases. The majority of their customers aren’t doing it because this would trigger New Source Review, and it would sort of start the saga. 

Another good example is if a pulp mill is taking down two 

older—let’s say coal fired boilers, and then to replace them with 

one gas fired boiler, when you are considering that, the only thing 

you consider going into NSR is that you are building a new gas 

fired boiler, not that you are having a net reduction of, let’s say, 

200 tons per year of NOx, or whatever the pollutant that you are 

trying to control is. So, that factors very heavily into the decision 

as to whether or not you are going to take on this project. 

There is a lot of opportunity here. Obviously, there are plenty of 

manufacturers making control technologies across the board for 

these pollutants. And I am not suggesting that NSR shouldn’t happen; it is just let’s figure out a way to actually let it enable some 

of these efficiency upgrades. That is really all we are looking for. 

Senator BARRASSO. Mr. Coddington, the University of Wyoming 

supports this unique public-private partnership known as the Integrated Test Center that we talked about. It is going to be one of 

the first research facilities in the world located at an operating coal 

fired power plant. The ITC researchers are going to study how to 

use the excess carbon dioxide that is captured at the plant and 

turn it into a valuable product. 

Can you talk a little bit about how this research is going to support further reductions in carbon emissions? 

Mr. CODDINGTON. Yes, Mr. Chairman. So, as you indicated, the 

Integrated Test Center should start operations in January 2018. It 

is the only center of its type in the United States. It will upscale 

increase from the good work that is currently being done at the National Carbon Capture Center. The researchers there, including the 

first tenants, which are the NRG COSIA Carbon XPRIZE, will be 

looking at ways to more efficiently both capture carbon dioxide 

emissions from a coal fired power plant, that being Dry Fork Station, and they will also be conducting research on how to make 

beneficial use of that carbon dioxide. Indeed, making maximum use 

and economic use of the CO2 is one of the major purposes of the 

Carbon XPRIZE. So, the ITC, by design and definition, is fulfilling 

the mission of pursuing economic technologies to reduce carbon dioxide emissions from coal fired power. 

Senator BARRASSO. Thank you. 

Senator Carper. 

Senator CARPER. Thanks. 

Thanks again, everyone, for joining us and for your testimony 

today. 

As my colleagues have heard me mention, I am a native of West 

Virginia. My dad, coming out of high school, worked at a coal mine 

in Beckley for a while, before going off to World War II, and I have 

a strong feeling and affection for people in West Virginia, and in 

Wyoming, including a cabin in Wyoming, Delaware. It caused a big 

deal in coal, a big deal in Wyoming as certainly my native State. 

I have supported clean coal technology for longer than probably a 

101 

bunch of the people in this room have been alive. Robert Byrd was 

one of my early mentors while I was in the House and later as a 

Senator here. 

Having said that, I was pleased to work with Ted Stevens, 

Dianne Feinstein, and others on regulations, CAFE regulations, actually, on legislation raising for the first time in some 30 years fuel 

emission standards, mileage standards, fuel efficiency standards 

back in 2007; and we have seen, as is always mentioned about the 

kind of job growth that has taken place as a result. 

I think one of the most important things we do, as I said earlier, 

in Government is create a nurturing environment for job creation, 

job preservation. With respect to fuel savings, efficiency savings, 

reductions in emissions that have flowed from the changes since 

the 2007 law was signed by George W. Bush has been remarkable. 

The role of Government in this is not just to pass laws or regulations that sort of put the meat on the bones of the laws, but we 

also have the opportunity to make investments in R&D, smart investments that help lead to technologies that can be commercialized and lead to these efficiencies. A second thing that we can 

do is have tax policy that incents people to buy energy efficient vehicles, and we have that today. The third way that we do it is we 

use the Government’s purchasing power to help create a market for 

these new technologies and new products, and we need to do all of 

that. Plus, we have invested a whole heck of a lot of money in clean 

coal technology, as I think most of us know. 

I am going to ask Zoe a question. One of the most important 

things we can do in Government is, as I said, create that nurturing 

environment. We tried to do that in Section 143 of the FAST Act 

a couple of years ago, which requires the Department of Transportation to designate national electric vehicle charging hydrogen propane and natural gas fueling corridors. These proposed corridors 

are nominated for designation by State Department for Transportation and local entities. 

I would just ask Ms. Lipman are you familiar with that provision 

in the FAST Act that requires and supports new transportation innovation? If so, how would you recommend that we build on it in 

other policies to incentivize more private sector innovation for alternative fuels and alternative fuel infrastructure? 

Ms. LIPMAN. Thank you. I am not familiar with the details of 

that policy, but definitely with the broader—— 

Senator CARPER. Go ahead. 

Ms. LIPMAN [continuing]. Efforts to promote not only electric and 

other alternative vehicle charging and fueling infrastructure, but 

also the vehicles themselves. And I would underscore that we are 

really in a race for the next generation of vehicle technology worldwide. A couple decades ago people had questions about whether 

electric vehicles were real and whether the U.S. had what it takes 

to build the technologies, especially the electric powertrain, the batteries, et cetera. 

Today we have manufacturers of both the components that go 

into electric vehicles and into the infrastructure across the nation; 

there are probably two dozen in Indiana alone, as well as all across 

the south, in California, in Texas. And there is rapidly growing interest not only, and I think this is something that crosses over into 

102 

the electric sector as well, but in using the technology that goes 

into charging to also help us upgrade and make more resilient our 

electric grid. 

So, there is a tremendous opportunity for innovation which is 

being deployed already. Meanwhile, nations across the world, 

whether in Europe or in Asia, in China, in particular, are pulling 

out all the stops to see that they too can lead in this rapidly growing technological field. 

Senator CARPER. Thanks. Hold it right there. Hold it right there. 

Hold it right there. I am running out of time. 

My wife and I went to an Aspen Institute seminar back in August in Norway. Norway has the fifth or sixth largest gas and oil 

reserves in the world. They also have 40 percent of their vehicles 

now are powered by electricity. Forty percent are powered by electricity. 

A year earlier I went to an Aspen Institute seminar in China and 

had the opportunity there to see the incredible investments that 

China is making in electric vehicles; large buses, cars, trucks, and 

the infrastructure to support them. 

Ford and GM just announced last month that they are going to 

be launching 23 new models of electric vehicles in this country, I 

think by 2025. This is coming. This is coming, and they are going 

to need to be powered somehow. They can be powered by utility 

powers creating electricity. It could be coal, it could be natural gas, 

it could be clean coal, I hope. It could be renewables as well. There 

is a way to do this and do this in a smart way. 

Senator BARRASSO. Senator Inhofe. 

Senator INHOFE. Thank you, Mr. Chairman. 

I have to say one thing in response. They always end up talking 

here about the great Paris Agreement. If there was ever a joke, 

that is it. You know, they have been trying for 21 years to get 192 

countries, 196 countries to agree on something that they all agree 

on; and when I have talked to those individuals, and I have been 

at some of these meetings, they are there lining up to see who can 

get the most money out of the system. 

Now, this great Paris Agreement that took place, what did we 

commit to in our country? President Obama said we will reduce 

CO2 emissions by 27 percent by 2025. Now, I was Chairman of the 

Committee at that time. We called his own EPA and said we want 

you to come in and testify and tell us how you are going to cut 

these emissions. They refused to do it. I have never seen a time 

when someone in the jurisdiction of a Committee refused to testify. 

And the reason was that they couldn’t do it. 

What did other people agree to? India. India said, yes, we will agree that if we get somewhere between $1 trillion and $2.5 trillion, we will start doing something about emissions. 

China. China, right now, every 10 days comes out with a new 

coal fired energy plant, generating plant, and they said we will continue to do that until 2025, then we will consider doing something 

of a reduction. When 2025 comes, no one is going to remember. 

But I would just like to remind people that they have tried for 

21 years, and this is the best they can come up with. 

Now, Mr. Eisenberg, I want to mention something. Some good 

things are happening right now. I mean, look at the economy. 

103 

There is an article in this morning’s Wall Street Journal that I 

want to make, Mr. Chairman, a matter of the record here. I will 

just quote one or two sentences here. ‘‘U.S. manufacturers have 

added 156,000 workers since Donald Trump was elected President 

in November 2016, according to the government data. That is a 

clear turnaround from the loss of 16,000 jobs during the final year 

of Barack Obama’s administration.’’ 

I ask unanimous consent this be made a part of the record. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

104 


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11115!2017 U.S. Manufacturing Rides Rising Tide, Buoyed by Global Grov.rth, Optimism~ WSJ 

BUSiNESS 

U.S. Manufacturing Hides !Using Tide, 

Buoyed by Global Growth, Optimism Makers of everything f•om bulldoze's to food products are on an upswing as production, 

spcndmg and sentiment improve 

fly Andrew Tangel and Josh Zumbrun 

Updated Nov. 14, 2017 2:45p.m. ET 

Ameriean manufacturing has picked up pace over the last 12 months thanks to steady 

global economic growth, a rise in energy and other commodity prices, and increased 

business confidence. 

Although progress isn't being felt by all indmtrics, mt~kers of items ran~ingfrom 

bulldozers to semiconductors to food products are on the upswing as various measures 

of spending, sentiment and employment have climbed, while stock markets have hit 

record highs. 

The sector "absolutely has improved relativo:> to where we were a year ago," said WiHiam 

Strum>s, a manufacturing economist at the Federal Res<"rve Bank of Chic~go, who 

described the growth us modest. 

Employment numbers point to th~ overall progreo.s. The U.S. manuf~'lcturcrs have ndded 

156,000 workers since Donald Trump was elected president in November 2016, 

according to government data. 

That is a clear turnaround from the loss of 16,000 such jobs during the t1nal year of 

Barac:k Obama's administration, alth<mgh the recent growth hasn't surpassed 

manufacturing payroll increases in 2011 and 2014, when the sector gained more th~n 

200,000 jobs, 

• Household Dehl Hils a Now H1gh 

• ProdurerPrioosJump,s;grmhngMOO'IIorlilhon 

• Ex-P'imcoCEOisCandkJa\tlforFGdV•cttCh;N 

Also, business investment has risen, n sign 

companies are spending to increase 

productivity. In the first quarter, investment in 

phmts climbed a season~lly adjusted annual 

rate ofl4,8%, the highest since early 2014. 

Investment in equipment climbed 8.8% in the 

second quarter, the highest in almost two years. 

a 1~/3l Y1eld 

https://www.wsj.com/artic!es/u-s-manufacturlng-picks-up-pace-whlle-waiting-for<lona!d-trumps-po!icy-promises-1510655405?mod=djem10point 1!4 
105 


28078.087

11/15/2017 U,S. Manufacturing Rides Rising Tide, Buoyed by Global Growth, Optimism. WSJ 

A confluence of factors is helping numufncturing, according to .Stanley Black& Decker 

IIlc. Chief Executive James Loree, who cited a shrinking wage differential bel ween U.S. 

and foreign workers and rapid technologicn! ndvanccs in the sector. [n his particular 

business, "end users love locally made products," Mr. Loree added in an interview on 

Tuesday. 

"Global macroeconomic conditions arc solid," Rockwell Automation Inc .. Chief 

Executive Blake Moret told analysts, citing "stron~ orders" and optimistic forecasts for 

globul economic growth and industrial production. 

Winners and losers 

Sectors with biggestjobg;:~ins 

M.xhinery • 

Fruit/vegetable 

Ill 

Hand tools !11 

F<:Jbrkated meta! Ill 

Confectionary l'il 

lron,stee!mills !l 

8.8% 

7.6 

7.1 

6.7 

5.9 

5.8 

5.6 

Purch_ased steel products S 4.S 

M:nerai products IIi 4.6 

Machir,e s,'Jops 4.0 

Sectors with biggest job losses 

-···- Cut and sew appare! 

-7.11 Other apparel 

-5.!111 Misc. computer. 

electronic 

-3.i HVAC, refrigeration 

-3.4 Fabric mills 

-z.t Motor vehicles 

-1.~ Cleaning compounds 

-l.t Tc){ti!e a'ld fabric 

-1,t 

-1.4 Paints, ildhesives 

Source: Bureau of Labor Statistics 

Milwaukee~ bused Rockwell, 

which sells factory 

hardware and software to 

myriad manufacturers 

around the world, Raid !nst 

week it expects organic 

sales ~,rrowth [lS high as 6.5% 

in its 2018 fiscal year, with 

an additional 2.5% boost to 

its results coming from a 

weaker dollar. 

Glohal energy and 

commodity prices have 

rebounded nmid growth in 

many economies around 

the world. Thnt has boosted 

sales for It!inois·basC'd 

manufacturing gillnt 

Cntcrpillar Inc.11nd other 

makers of heavy machinery 

used to extract natural 

In the process, Caterpillar 

has inercascd its domestic 

workforce by 3.200 from 

the end of March to 49.700 

at the t~nd of September. 

"The overall cnvironm<mt 

is more business-friendly 

and we think that has 

;;rcatedsnmellL1sincss 

confidence," Cate-rpillar tlnancc chief Brad Halverson said in <111 interview, 

Part of the optimism stemmed from the election of a businessman as president last 

November and Mr. Trump's promise of reduced taxes and ft!Werrcgulations, 

The gains have happened even though important p:Jrts of Mr. Trump's manufacturing 

agenda haven't come to fruition, observers and business leaders say. 

Early ln his term, Mr. Trump promised to punish American companie!'l that shift 

produclion abroad, but such penalties ha11(!n't matt>ria!!zcd. Also, advisory panels that 

included top manufacturing and other t~X\~cutivcs disb~ndcd after Mr. Trump made 

controversial comments ubmtt racial tensions in Charlottesville, Va. 

A big item, the overhaul of U.S. taxes, is being debated in Congress. Out a $1 trillion 

infrastructure plan hasn't panned out. Nor h<-IS repeal ofLhe Obama~era health~care law. 

"We believe the lack of progress over key clements of federal policies-·specifieally 

health care, tax reform, and infrastructure funding-continues tD exert downward 

https ://www.wsj.corr,/artic!es/u-s-manufacturlng~pi cks-u p-pace~while~wa1ting-for --tlonald-trum ps-po!lcy-promi.s es-151 06554 05 ?mod :djem 1 Opoin! 2/4 
106 


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11/15/2017 U.S. Manufacturing Rides Rising Tide, Buoyed by Global Growth, Optimism· WSJ 

Sectors with biggest rate of job gains 

Otherfood 

Pharmaceuticals ~ 

~ 

Beverages ~ 

Anima! slaughtering ~ 

Motor vehicles 

Milthine shops 

Medica! equipment 

Bake•ies 

Anima! food 

- 19.9 

19.9 

17.1 

10,0 

5.9 

4.1 

53.6% 

42.9 

42.5 

Dairy product<> 

Structural metals 

0.6 

0.4 

Sectors with biggest rate of job losses 

·87.9% 11-lllllillll!~ lllllillllllllllll~'ll!l!llll-1!1 

-ss ·81. .. ~===== w -

·7- ~-~ 

Source: Bureau of Labor Statistics 

Cut and sew apparel 

Other apparel 

Fabric milts 

Textile and fabric 

finishing 

Fiber, yarn 

Misc. computer, 

electronic 

Communicatkms 

Pulp, paper 

Corropuler 

equipment 

Iron, steel mi!ls 

pressure on both public and private construction activity," C. Howard Nyc, chief 

execulivt"- of North Carolina-based MHrtin Madella Muterials Inc. said in an analyst call 

on Nov. 2< 

Gary Cohn, the president's top economic adviser, said Tuesday that a plan to overhatll 

the nation's infrastructure is "the next thing on our agenda." 

Amid general improvement for manufacturing, sonH~ industries and companies have 

posted significant gains while others have continued to struggle. Among 70 

manufacturing suh·industries tracked by the Labor Department, 19 have seen robust 

employment increases of2,5% or more since October 2016, the month before the 

election. 

Dut over that same period, 22 industries have srcn employmcntrleclinc, ineludin~ 

at>rospacc and manufacturing or motor vehicles and parts. 

The performance of America's largest manufacturing companies also has been mixed, Of 

the to largest industrial companies in the S&P 500, only Caterpillar, Honeywell Inc. and 

3M Co. recorded hight~r third~quarter profit and carnin~o:s per share compared with a 

ycttr earlier, according to d:1ta from Thomwn Reuters 1/B/E/S. 

Profit and earnings per share declinetl at General Electric Co., Doc.ing Co., United 

Technologies Corp., Lockheed Martin Corp. and General Dynamics Corp. 1\vo 

companies- United Parcel ~ervict' Inc. and Union Pncifk Corp. -posted a rise in per~ 

share earnings while their overall profit slipped. 

To be sure, manufacturin~ growth could again slow if the economy tips into recession or 

https·f!www.wsj.com/orticles/u-s·manufacturing-picks-up-pace-while-walling-for-dona!d-trumps-policy-promises-1510655405?mod=djem10polnt 3/4 
107 


28078.089

1111512017 UB. Manulnctunng Rides RJs1ng T1de, Buoyed by Global Growth, Optimism~ WSJ 

ii'Uwre are Ji:-;ruptlons in trade or other gcopolit!cn! problems. A weaker dnll<1r·-whkh 

has boosted exports by making American goods cheaper nbrond-·cou\d rcwrse 

direction, Those factors could further buffet the sedor, whkh has cxpt:rienced 1-ong"-

term declines in employment fueled by automation and sllifl!ng of production abroad, 

Still, many business leaders remain hopcfull\h. Trump can deliver an infraslrudure~ 

>;pending plan and trade measures that benefit domestic munufuctmers 

Harlcy*Davidson Im:. Chief Executive Matt Lev<.1lil:h credits Mr. Trump's administration 

with turning <1. welcome spotlight on manufacturing and skilled lraUes. 

"It h.asn'l yel rcully accrued into any speclfic: policies, hut we're optlmi,.tic that just the 

attention anJ the awareness will help shift people's mind*set about tlw rok vf 

manufacturing," I'vir. Levatieh said in an interview. 

American •:orporute chiefs and other obser-vers see the administra:ion's uctions to roll 

bnck federal rcgnlatlons-an agenda 1hat has moved ahead with le;>s public fanfare~as 

likely to help in the long term. 

The Tnur..p admini;;tration, according to Mr. Loree, has pruvicleJ Lhe "king on the cnke" 

for the sector via its deregulatory efforts and its general pro-business approach. 

"It's a moment in time when it'J; ::t.ll coming together," th~e Stanley Black&· DN:kcr CEO 

sai(L 

Write to Andr('W Tangcl at Andrcw,Tan~el@wsj,com and Josh Zumbrun at 

Josh.Zumbrun@wsj,eorn 

Appeared in the November 15, 2017, pr{nt edition as 'American Industry Picks Up .S'te:am.' 

h!tps: //www_ wsj, co rn!o rticles/u-s~manufacluring~picks-\JP -pace· while -wait! ng-for ·don a!d-trum ps-poHcy-promlses-151 065 54 OS?m od ..:;djem 1 Opoint 4!4 
108 

Senator INHOFE. Also, the other thing, I have personal experience 

in this because I was a builder and developer for 20, 25 years, and 

I was doing things, making the sacrifices, building, expanding the 

tax base, making money, losing money, and all that. But the chief 

opponent I had, or opposition I had all that time was the Federal 

Government. So, I want to make this a part of the record, too. 

One of the great things this President has done is all the CRAs, 

Congressional Review Acts, and I am proud that mine was the first 

one that had a signing ceremony, and that was the one where 

Obama had come out with a rule that said if you are competing 

here in oil and gas domestically, in the United States, with China 

or other countries, you have to give them all the information out 

of your playbook, putting us in a competitive disadvantage. 

So, I introduced a CRA. It passed overwhelmingly, and the President signed it. 

And I want to make this a part of the record also, because I have 

some 70 rules and regulations that have caused our energy economy to start turning around. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

109 


28078.090

2nd regime of privacy rules in addition 

Inhofe's reYoking SEC nde for oil and 

Trump Executive Actions 

3. Energy: n::pea]s dean pmver 

4. Mexico City: reinstates ban 

5. Hiring Freeze: freezes federal hiring 

6. Military: rebuilds military 

7. ApprO\res 

8. Approves 

Admission Program 

regulations ... ending \J\far on Fossil Fuels. 

NGOs that do abortions 

military) 

Sanctuary Cities: federal Department of justice grants to sanctuary cities. 

Dodd-Frank: demands review of Dodd-Frank banking regulations and 

Shrink government: directs federal reorganize to reduce ·waste and 

14. Trade: evaluates policies to reduce 
110 


28078.091

torHc•-bc,ttc>m audit of Executive Bra11ch 

Historically Black Colleges and 

Universities offices from Department of Ed to 

VVhite House 

26. Obamacare: directs federal agencies to 

ease burdens of ACA. 

27. Establishes American Te.chnology Council 

28. Establishes office of Trade and 

.Manufacturing 

29. Identifies and 

42. Issues additional streamlining 

infrastructure projects - also revokes Obama 

43. Imposes new sanctions on Venezuela 

the environmental review and permitting process for all 

risk management standard order 

44. Revokes Obama order that prohibited state, local, and tribal law enforcement entities from accessing federal 

acquisitions by China entities of a semiconductor company for national security reasons. 

46. Trade: widens trade sanctions on North Korea 
111 

Senator INHOFE. So, I just want to observe, Mr. Eisenberg, all 

the things that are happening right now. You know, the second and 

third quarter of this year, we have increased the economy by 3 percent. In the first quarter, of course, that was the previous Administration, it was 1.6 percent. And that is a huge thing. Right now we 

are talking about what can we do to increase the revenues that 

come into the United States, and one of the best ways is to increase 

our GDP, and that is exactly what we are doing. 

So I would say, Mr. Eisenberg, there is not time for a question 

from you, but I would only say that good news, good things are 

happening right now, and I think your testimony has made that 

real clear. 

I want to say one thing, however, Mr. Coddington, because Harold Hamm—do you know who Harold Hamm is? 

Mr. CODDINGTON. Yes, I do. 

Senator INHOFE. All right. Harold Hamm, for those who don’t 

know, is the Executive Director of the International Energy Agency, and he said yesterday, ‘‘The United States will become the undisputed global oil and gas leader for decades to come. The growth 

and production is unprecedented, exceeding all historic records.’’ 

Harold Hamm, by the way, is from Oklahoma. He has the Continental Resources, and he is even, right now, exporting oil to China, 

of all things. 

So good things are happening, and I have no questions. Thank 

you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Inhofe. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. 

First, Mr. Chairman, let me say I hope that the hearing becomes 

an encouragement for the bill that you and I have worked on, the 

Carbon Capture, Utilization, and Storage Act. I think that there is 

significant technological opportunity to be achieved in that space, 

but it is rather hard to achieve technological opportunity in a space 

in which there is no value proposition to the investor. And as long 

as there is no price on carbon, the corollary of that is that there 

is no benefit to low carbon, so it gets really hard to find a way to 

achieve revenues for offering a carbon capture technology. There 

have been some grants that have allowed experimental projects to 

proceed, and where you are near an oilfield, there is, like up in 

Saskatchewan, the ability to try to find a revenue stream from 

pressurizing the oilfield. But not every coal plant is located geographically near an oilfield where that revenue stream is even a 

possibility. 

So I think we have the opportunity in this bill to at least create 

a window of a revenue stream to support that, and I hope we will 

continue to move forward with that bipartisan legislation. 

As long as we have you here, Mr. Eisenberg, could you tell me 

what the position is of the National Association of Manufacturers 

on climate change? I haven’t been able to find anything on your 

Web site since the 2009 statement of the 80 different hurdles that 

any legislation or program would have to pass before you could 

support it, which didn’t even seem consistent with one another. 

Mr. EISENBERG. Absolutely. 

Senator WHITEHOUSE. Is there a current position since 2009? 

112 

Mr. EISENBERG. Absolutely. 

Senator WHITEHOUSE. What is that? 

Mr. EISENBERG. And I will direct you to the part of the Web site 

that does state it. We believe that we should be acting on climate, 

period. Manufacturers are increasingly doing it, you know, across 

the board. Manufacturers are taking matters in their own hands 

because their investors are demanding it, their customers are demanding it, their employees are demanding it, and they are doing 

it. So we absolutely believe that we should be acting on climate 

change—— 

Senator WHITEHOUSE. And you opposed the Clean Power Plan, 

correct? 

Mr. EISENBERG. We did oppose the Clean Power Plan. We are 

asking the EPA to replace it with a better regulation. So we are 

comfortable with regulation—— 

Senator WHITEHOUSE. Is there an example that you have of a 

better regulation, or is that just kind of a hypothetical better regulation out there in space? 

Mr. EISENBERG. Sir, we are not the ones writing it, but yes, we 

are going to have some ideas on what that should look like. I think 

under 111—— 

Senator WHITEHOUSE. But you don’t have a proposal? 

Mr. EISENBERG. So we have not put forward our proposal yet. In 

some of the Clean Power Plan comments we did actually submit 

plenty of suggestions on how they could sort of fix that proposal. 

Frankly, 150 pages of suggestions. Some of them were taken; some 

of them were not. But yes, there are things you could do within the 

confines of 111 that I think would probably hold up under law and 

would be effective in reducing emissions. 

Our concern on that, quite frankly, was not just the power sector, 

but the sort of follow on effect, since that is a precursor to rules 

on the industrial sector as well. 

Senator WHITEHOUSE. I guess I would just close by saying I am 

glad that you are, as an organization, supporting taking action on 

climate change. I gather you wouldn’t support that if you didn’t 

concede that this is a real problem that America needs to address. 

And I gave remarks a little while ago on the Senate floor about 

some of our universities that seem to agree very strongly on this, 

and I pick out particularly, because their States are here represented today, the University of Wyoming and the University of 

West Virginia. 

The University of Wyoming Center for Environmental Hydrology 

and Geophysics says many of the most pressing issues facing the 

western United States hinge on the fate and transport of water and 

its response to diverse disturbances, including climate change. University of Wyoming scientists publish articles on the effects of projected climate change on forest fires, sustainability. The University 

of Wyoming awards grants to study the effects of climate change 

on pollinators, on water flow, on beaver habitat, on white bark pine 

growth. All of this work is going on, I think, in good faith in recognizing that climate change is very serious. 

In West Virginia, the Mountain Hydrology Laboratory tells us 

that climate change has important implications for management of 

freshwater resources; that the Highlands Region in the central ApVerDate Aug 31 2005 10:16 Jan 24, 2018 Jkt 000000 PO 00000 Frm 00116 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\28078.TXT SONYA
113 

palachian Mountains is expected to ‘‘wet up’’; that as warmer air, 

which carries more moisture, leads to what West Virginia University is calling the intensification of the water cycle, which is a nice 

way of saying storms and floods, that laboratory warns that the implications of this intensification are immense. And indeed, West 

Virginia University’s climate scientist, Professor Hessel, was recognized by West Virginia University as West Virginia University’s 

Benedum Distinguished Scholar. So not very likely that climate 

change is treated as a hoax in West Virginia when the West Virginia University Benedum Distinguished Scholar teaches climate 

science. 

Thank you very much. 

Senator BARRASSO. Thank you, Senator Whitehouse. 

Senator CARPER. Mr. Chairman, I ask for unanimous consent, if 

I could make a unanimous consent request, to submit for the record 

testimony refuting concerns mentioned about New Source Review. 

These concerns have been voiced for decades. As Mr. Eisenberg 

stated, clean investments are being made. New Source Review 

makes sure the overall emissions do not increase so we don’t clean 

up our pollutants by increasing emissions of another. 

Thank you. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

114 


28078.092

Mary Gustanski 

Vice President of Engineering, Delphi 

Statement for the Record- November 15, 2017 

Promoting American Leadership in Reducing Air Emissions through Innovation 

Thank you, Chairman Barrasso, Ranking Member Carper, and Members of the Committee on 

Environment and Public Works for giving me the opportunity to submit testimony on behalf of 

Delphi. 

My name is Mary Gustanski and I currently serve as the Vice President of Engineering for 

Delphi. Delphi is a high-technology company that integrates safer, greener and more 

connected solutions for the automotive sector. We invest more than $1.7 billion annually into 

engineering development initiatives. In the U.S., Delphi operates major manufacturing 

facilities, technical centers, and/or administrative facilities in California, Michigan, Ohio, 

Indiana, New York, Pennsylvania, Massachusetts, Mississippi and Texas that employ 

approximately 5,000 people. Delphi's technology portfolio places it at the center of vehicle 

evolution and innovation, making products smarter and safer as well as more powerful and 

efficient. 

Given our proven expertise with market-leading original equipment manufacturers (OEMs) 

around the world and our broad automotive systems capabilities, we welcome the invitation to 

provide the Committee with testimony on opportunities to reduce air emissions through the 

development of new technologies. 

Delphi's Focus on Innovation 

The automotive industry is facing some of the most dramatic changes ever to impact 

transportation. In order to stay successful, Delphi and the industry as a whole must understand 

and comply with the desires and emotions oft he vehicle purchasers and operators, the 

'interfacers' such as pedestrians and so much more in addition to compliance with the 

regulations. 

The convergence of safe, green & connected is enabling future vehicle solutions. The 

connected car is now an expectation of the average consumer, and consumers are also 

demanding the active safety features that serve as the foundation for automated driving. 

Delphi is also driving advancements in propulsion, including the best value electrification. To 

achieve our vision of continuing to innovate our comprehensive portfolio to deliver future safe, 

green & connected systems, Delphi employs 20,000 scientists and engineers across 15 major 

technical centers in order to continue introducing industry leading technologies. 

Delphi has recently announced that the company will create two separate entities that will 

allow each company to intently focus and optimize its individual area of engineering expertise 

while maximizing opportunities to provide customers with the best in advanced technologies in 

the auto industry today. The spin-off entity, which will be known as Delphi Technologies, will 
115 


28078.093

continue to be a leader within the propulsion segment focused on continued innovation in 

combustion, electrification and software and controls to enable the optimal path to 

electrification. 

The Path to Electrification. Closing Fuel/ C02 regulation gaps with 48 Volt Mild Hybrid. 

Automakers are growing more bullish about the electrification of powertrains by adding hybrid 

technology to vehicles with internal combustion engines- and for good reason. With future 

regulations of95g C02/km in Europe and 54.5MPG in the United States by 2021 and 2025, 

respectively, there is immense pressure on the industry to meet these requirements. 

Improvements in internal combustion engines have helped close the gap to regulatory targets. 

Technologies like gasoline direct injection (GDi), variable valve actuation, and common rail 

diesel have had a significant impact in reducing emissions, and improving fuel economy- and 

they will continue to do so. Despite this progress, however, the industry still has a big gap to 

close. 

We know electrification allows further engine downsizing by providing more power for 

intelligent driving. But, to get to these targets, the path there has to be affordable and without 

the drawbacks that have kept solutions like full hybrids and electric vehicles from selling; cost, 

range anxiety, lower fuel prices, and performance issues. Because of these drawbacks, analysts 

predict less than 5% of all vehicle sales will be electric by 2025. 

What does this mean? 

It means there is a substantial portion ofthe market that can be electrified using hybrid 

technology in order to further improve emission and fuel economy. 

Delphi's Innovation in Propulsion- the 48 Volt Vehicle 

Recognizing that one powertrain type will not satisfy all regions on all segments in the 

foreseeable future, Delphi is working to expand the range of solutions for diesel and gas 

engines, to improve the cost/benefit ratio. Delphi provides systems expertise to integrate and 

optimize engine performance. This systems expertise is more in demand than ever, especially 

in markets like China. 

Delphi last year introduced 48-volt, mild hybrid technology to help automakers achieve global 

fuel economy and C02 regulations without trading off vehicle performance. Delphi's system 

offers 25 percent more torque of a 12-volt, stop-start while delivering >10% C02 reduction. At 

four times the power of a 12-volt system, this solution will provide automakers ample room to 

innovate without moving up to a bigger engine to get more power. Delphi's solution adapts the 
116 


28078.094

vehicle architecture to a mild hybrid architecture efficiently, enabling a best value 

electrification system. 

The latest Institute for Highway Safety (IHS) forecast projects over 19M 48-volt systems to be 

sold by 2025, from zero today. About 18 percent of vehicles produced in 2025 will be 48-volt 

powered, which makes 48-volt, mild hybrids the best value and most logical solution to help the 

industry hit f/e and C02 targets. 

The beauty of 48-volt is there is no trade-off of power and performance like there is with 

today's 12-volt, start-stop systems. 

Many oftoday's hybrids use 12-volt, stop-start systems that shut offthe engine when stopped 

at a light. But this type of system lacks power when pulling away at a light leaving consumers 

feeling underwhelmed. To overcome this sluggishness, Delphi's 48-volt, mild-hybrid system 

enables seamless start. This makes 48-volt, mild hybrids a logical bridge from 12-volt, stop-start 

to full hybrids. It essentially enables consumer familiarity with electrification while offering an 

easier transition step for automakers. 

Complementing mild hybrid technology is the latest advanced combustion technique enabling 

variable valve actuation; a strategy that adjusts cylinder actuation to match the power demand. 

Delphi is now working on a system that marries 48-volt with Dynamic Skip Fire (DSF)-this 

unique technology leverages software to balance the number of cylinders the engine needs to 

fire based on throttle demand. Like 48-volt, DSF does not sacrifice performance for 

efficiency. No longer does your engine need to operate with a fixed number of cylinders. Our 

Silicon Valley partner, Tula, has essentially optimized an algorithm that enables a continuously 

variable-sized engine. It can work on any combination of zero up to eight cylinders. 

Combining the two technologies, extends the operating range of both, and has the potential to 

deliver 20% more fuel efficiency for a fraction of the cost of other solutions. 

The 48 Volt Vehicle-A Win-Win 

Car buyers will buy 48-volt, mild hybrids for the added performance and car companies will 

offer the technology because it gives them a faster and more affordable path to hitting these 

targets. It's a win-win for everyone. 
117 

Senator BARRASSO. Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. 

Thank all of you for being here today. 

I am going to start with Mr. Coddington, but I am going to make 

a couple of comments. I am also a co-sponsor of the clean coal bipartisan effort to move forward with the technologies, bring value 

to that, and spur that along through a 45Q tax credit. We have 

great stakeholders in that participating, from environmentalists to 

coal companies, so I think it shows a path forward. 

I would also say, in conversation about electric cars, I am all in 

favor and very excited about the technologies that we see. But remember they have to be powered by electricity at some point, and 

they have to be plugged in, and what that says to me, as a coal 

State representative, is you need that good baseload energy resource to be able to power electric cars. 

So we can move toward emission free on the automobile side, but 

we have to keep moving forward on the coal side, because coal is 

going to be needed to power those electric cars. That is just simply 

going to be a fact, I think, of the future of our transportation system. 

As Senator Whitehouse mentioned, West Virginia University is 

doing great research in this area, but we also have Longview Power 

Plant, which is the highest efficiency, lowest emission plant in the 

country, and they are struggling. They are struggling because the 

economic model here in this country to deploy the cutting edge 

emission and dual fuel capacity and regulatory pressures has made 

it difficult for them. 

In the meantime, the President just returned from China. We see 

China building supercritical plants and moving forward not just 

with the buildout, but with the technology that it takes to build 

these kinds of plants. You can’t build that in the United States 

right now in this environment, because of the expense and because 

of the difficulties and the headwinds that coal faces. 

So I would ask, Mr. Coddington, where do you see the future of 

supercritical coal plants in this country? Can we get there or is 

China going to continue to eat our lunch in this aspect? 

Mr. CODDINGTON. Senator Capito, I do have great confidence in 

ultra-supercritical combustion technologies. I actually think if the 

regulatory environment is right, that you may see some of those 

plants start to come in the United States. 

In conjunction with our colleagues at West Virginia University 

and University of Kentucky, we actually are doing a lot of clean 

coal projects both in China and in the United States under the 

U.S.-China Clean Energy Research Center. So I am very optimistic 

about that technology. When you look at pathways forward for 

clean coal, certainly the more efficient combustion of it would have 

to rank among some of the most optimistic technologies that you 

could employ at scale. I think one of the main issues in the United 

States is competition between coal and gas, so there are economic 

considerations there that can’t be overlooked. But I am quite optimistic about ultra-supercritical coal. 

Senator CAPITO. Well, you kind of threw a big if in there: if the 

regulatory environment is suitable. How would you describe it at 

this point in time right now? Are we suitable for the development 

118 

of that; are we moving toward that, or are we moving away from 

it? 

Mr. CODDINGTON. Senator Capito, again, I am not a particular 

expert in this field, but my impression is, under the Clean Power 

Plan and the Section 111(b) rules, that there was a preference toward carbon capture and storage, if you will, as opposed to maybe 

the deployment of ultra-supercritical technologies, and I say that as 

a carbon capture and storage fan. I was looking for incentives for 

carbon capture and storage in funding. But I would think in an appropriate policy and regulatory environment that there should not 

be a reason why those plants could not be encouraged to be built, 

as long as the economics otherwise penciled in light of the market 

prices for shale gas. 

Senator CAPITO. Thank you. 

Mr. Eisenberg, we have talked a lot about carbon and carbon 

emissions. We have had several hearings on ozone and the ozone 

related regulations, and some of the difficulties that some areas of 

our country are having to meet a standard before they have met 

the standard before. 

What are your manufacturers telling you about trying to meet 

the standards here? I would just like to hear your comments on 

that. 

Mr. EISENBERG. Thank you, and thank you for your leadership 

in trying to address this issue legislatively. We still need relief. We 

actually went out to our members and asked for input, heading 

into this year, on what their biggest regulatory concerns were, and 

ozone is still at the top. They are struggling with having to implement this regulation and comply with it. It gets to the margins of 

technologies that they frankly just don’t know how to deploy. 

One of the charts I put in here, actually, a couple of the charts 

I put in my testimony are on NOx and VOCs, and you can see, on 

NOx, for instance, we are about 15 to 25 percent of all the total 

NOx emissions that come from the manufacturing sector. Yet that 

regulation basically requires all of the relief to come from us. So 

you kind of get a sense of why we are so frustrated here. We have 

done a lot already. We are running out of things to do, and we are 

still feeling the pain of this regulation and could really use relief, 

and thank you for all the work on it. 

Senator CAPITO. Thank you very much. 

Senator BARRASSO. Thank you, Senator Capito. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Mr. Eisenberg, a common complaint I hear from industry in Arkansas about the previous Administration, really, I think, Administrations in general, is the gotcha attitude from Federal agencies. 

Instead of working hand in hand with the industry to develop regulations that help the environment and foster economic growth, 

many felt that they didn’t have a place at the table. Then when 

regulations and unfunded mandates were released, industry were 

expected to hit thresholds that were impossible to reach. This usually ended with the Federal Government stifling economic growth, 

while providing few, if any, environmental benefits. Further, many 

regulations developed during the previous Administration were litigated, wasting the Federal Government’s time and money. 

119 

In your opinion, does an open and transparent dialogue with industry help the Federal Government develop sound regulations? 

More specifically, can this lead to smoother implementation? 

Mr. EISENBERG. So, thank you for that. 

Senator BOOZMAN. Really important. 

Mr. EISENBERG. I strongly believe that there needs to be improved communication and trust between the business community, 

the regulated community, which is essentially manufacturing, and 

the Federal Government. And you can see it in the vehicle space 

that my colleague from the BlueGreen Alliance spent a lot of time 

talking about. 

For some reason, we are able to do it in the vehicle sector, where 

the agency got together with the equipment manufacturers, the tier 

1 suppliers, and figured out a path forward that was aggressive, it 

worked, and everybody was able to kind of live with it and create 

jobs. You see it in the trucking space; you see it in the aviation 

space. 

We weren’t able to do that on a lot of these sort of core environmental air pollution issues in the stationary source side, the power 

plant side, the manufacturing plant side. Our hope is that we can 

get there. There are some programs that EPA is putting in place. 

They resurrected something called the Smart Sectors Program 

where there are dedicated employees who are working with each 

individual sector of the manufacturing economy and trying to foster 

better communication, better trust, and I do think that is the way 

to get there. 

We all want the same thing here. We are all trying to keep those 

trend lines on emissions going straight down. And I think there is 

a way to do it right and a way to not do it right, and hopefully we 

are headed toward a better path. 

Senator BOOZMAN. Ms. Lipman, do you want to comment? 

Ms. LIPMAN. I would actually second a lot of that in the sense 

that I do think the vehicle sector provides an example of the importance of engaging all stakeholders who have a key stake in the outcome of regulations, both in the regulated industry, as well as 

labor, environmental interests, community interests, et cetera. And 

I think there is tremendous potential to get to solutions that work 

for everyone. 

I think one thing that we have talked about here is the tremendous innovation happening. I do think we need to ensure that we 

have the leading standards and the sort of certainty and vision for 

companies to be able to make the investments to actually deploy 

some of these technologies, whether it is CCS or nuclear or advanced wind, you name it. I think in the electric sector we have 

seen a situation where all of those require a long term sense of 

where are we going in order for the investments to flow to deployment. So, whether we are looking at Paris or whether we are looking at economy-wide solutions, climate change, we need to retain 

a signal and a leadership, or we are not going to see these variety 

of technologies across. And we would agree that the span, the full 

range of energy and transportation technologies are solutions, but 

we need a shared commitment and clear regulatory pathway to get 

there. 

Senator BOOZMAN. Thank you. 

120 

Mr. Coddington, about 40 percent of Arkansas’s electricity is 

sourced from coal. The State’s legislature and the Arkansas Oil and 

Gas Commission have coordinated to set up a permitting process 

for enhanced oil recovery injection wells. The oil and natural gas 

production renaissance of the last 10 years has occurred on public 

and private lands, with the Federal Government slow to adapt to 

new technologies. It seems that States are leading on enhanced oil 

recovery as well. 

What can we, as Federal policymakers, do to help facilitate the 

deployment of carbon capture and enhanced oil recovery technologies? 

Mr. CODDINGTON. Senator Boozman, thank you for your question. 

First, I would like to commend the Committee for its work on 45Q, 

which has bipartisan support. Certainly, anything that can be done 

to incentivize the capture of carbon dioxide and utilizing it in enhanced oil recovery, or injecting it for deep saline storage, is to be 

commended, and we are very thankful for that. 

If you look at the existing markets for CO2, the biggest one is enhanced oil recovery. Largely, that is a matter of State regulation. 

There are some issues with respect to the underground injection 

control code under the Safe Drinking Water Act regarding the regulatory status of carbon dioxide that is stored. So, for example, 

under current law, if I purchase carbon dioxide and inject it for enhanced oil recovery, and then it has to be stored, I am at risk of 

being tossed into a different regulatory program that could be problematic for me. So I would recommend perhaps taking a look at the 

underground injection control program and how that might work 

from the point of view of enhanced oil recovery. But largely, that 

is a matter of State regulation, and the State of Arkansas is to be 

commended for its work that it is doing in this area. 

Thank you. 

Senator BOOZMAN. Thank you. 

Senator BARRASSO. Thank you, Senator Boozman. 

Before turning to Senator Carper for a second round of questions, 

I ask unanimous consent to insert into the record a paper on New 

Source Review. This is a whitepaper explaining the barriers that 

New Source Review poses to fossil fuel-fired power plants that 

make efficiency improvements difficult. The paper was prepared by 

the Carbon Utilization Research Council. 

And also unanimous consent to—— 

Senator CARPER. I object. Not really. 

Senator BARRASSO. Hearing no objections, ask unanimous consent to place into the record written testimony by Cloud Peak Energy in support of innovative policies to reduce emissions and provide regulatory certainty. Cloud Peak is headquartered in Wyoming; it is one of the largest U.S. coal producers. 

[The referenced information follows:] 

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28078.095

New Source Review 

Wbat is New Soun:e Review (NSRl? 

NSR is an air quality permitting program cnaated by Congress in the 1977 amendments to the Clean Air 

Act (CAA). The purpose of NSR in 1977 was to require that best available pollution control technology 

be Installed on new sources constructed in areas that are in attainment of national ambient air quality 

standards (NAAQS), and to require even better-performing pollution control technology in areas that are 

not in attainment of the NAAQS. 

NSR requires major stationary sources to complete a rigorous pre-construction permitting review 

process to assess the need for environmental controls, and to receive an NSR construction permit, If 

they propose to build new facilities, or make "major modifications" to, existing facilities that would 

cause an emissions increase of certain regulated air pollutants, The EPA regulations to implement the 

1977 legislation exempt "routine maintenance, repair and replacement" projects at existing sources 

from the NSR permit review process. However, the terms ~<routine maintenance, repair and 

replacement" are not defined and have been left to interpretation by EPA and state permitting 

authorities on a case-by-case basis. The inconsistencies and uncertainties in the application of NSR 

requirements has resulted in endless litigation by the EPA, public interest groups, and utilities. 

Additionally, EPA has adopted more stringent NAAQS standards since the NSR program was enacted, 

increasing the complexity for all soun:es induding power generators operating within NSR program. 

Efficiency improvements to existing fossil-fueled power plants both Improves the operating costs to run 

the plant, as well as reduce emissions such as co~ because less fuel is used to produce each kilowatthour of electricity. The figure below shows how increased efficiency reduces a plant's co, emissions. 

f61, 

Gl.., Thotmol a&i<mcy, HHV llom 

Used with p5rrt1/$$km from Eiectric Power Research Institute, Inc. 
122 


28078.096

But when the NSR program was enacted in 1977, CO, and other greenhouse gases (GHGs) were not 

regulated air pollutants under the CAA. Now, 40 years later, GHGs (including CO,) are regulated under 

the CAA. In part because it was not designed with co, in mind, the NSR program is counterproductive 

for achieving co, emissions reductions at existing plants, as EPA has taken the position that projects 

designed to reduce co, emissions, including efficiency improvements, can trigger NSR permitting 

requirements, making those projects prohibitively more expensive. For utilities, the NSR program has 

signifiCantly discouraged the implementation of efficiency improvement projects as well as other 

routine maintenance, repair or replacement activities at existing coal plants. 

What Triggers NSR? 

There is a two-part test for determining whether a project at an existing major source triggers NSR 

permitting requirements: 

(1) There must be a physical change or change In the method of operation of a facility that is not 

exempted by regulation from the NSR permitting program. Notable examples of such NSR 

exemptions include "routine maintenance, repair and replacement" projects and an increase in 

hours of operation or rate of production. 

(2) If the modifteation being proposed is not a physical or operational change exempted from the 

regulation (as noted in (1) above), then a change to a facility that results in a "significant net 

emissions increase" above historic baseline actual emissions levels for any regulated air 

pollutant triggers an NSR permitting review for the project. The EPA regulations have detailed 

rules for calculating historic baseline emissions and future emissions after the project. 

Some examples of changes to an existing electric generating unit have been included in complaints filed 

in NSR enforcement actions include: 

Improving the efficiency of an existing source through installation of new, more efficient 

replacement components such as turbine blading or higher efficiency motors and pumps; 

Adding control equipment to reduce emissions of one air pollutant that results in a collateral 

increase in another air pollutant, like installation of selective catalytic reactors to reduce NOx; or 

Undertaking routinE! component replacements which may include replacing or upgrading a piece 

of equipment to ensure the performance and reliability of a unit. 

Uncertainty of What Triggers NSR 

Although the NSR fE!gulations state that routine maintenance does not need to undergo NSR permitting 

review, the terms "routine maintenance, repair and replacement" are not defined, and have been left to 

interpretation by EPA and state permitting authorities on a case-by-case basis. Notably, EPA has made 

determinations that particular projects that improve the reliability, efficiency, and safety of power 

plants are non-routine and are therefore subject to NSR. 

EPA's regulations governing the calculation of emissions increases are also problematic. EPA's rules 

require a comparison between historic annual baseline emissions and highest projected annual 
123 


28078.097

emissions during any one of the five years following the project. While efficiency improvement projects 

actually result in reduced emissions per unit of power produced, they could still trigger NSR 

requirements because the rules define an "emissions increase1

' in terms of the impact of the project on 

total annual tons of emissions, not the impact to the emission rate. While the regulations allow for 

exclusions due to factors unrelated to the change at the unit (examples include declining fuel costs, 

increases in customer demand, and other independent factors), EPA has claimed that efficiency 

improvements can result in an increase in annual emissions because the unit may be dispatched more 

frequently and operate at higher annual capacity levels after the efficiency improvement project is 

completed, and thus cause an increase in the total annual tons of emissions. 

Despite years of litigation over EPA's determinations, these issues have never been fully resolved. This 

means power plant operators may avoid making efficiency improvements and undertaking maintenance 

projects at their facility for concern that such changes will be deemed a "modification" of the plant 

subject to NSR permitting requirements. Another impact of NSR is that if EPA determines a NSR 

permitting review is required, facility owners must undergo onerous requirements that can result in 

lengthy and costly permitting delays. And the EPA determinatiOn from the NSR permitting review 

process could result in EPA requirements for additional investments in new emission control 

technologies or other equipment in the facility. 

This uncertainty has created a strong disincentive to undertake projects that can otherwise improve the 

efficiency and productivity of our existing coal plants which would result in reduced emissions of co, from the existing fleet. 

What are the NSR Permit Regujrements? 

The following is a brief summary of the major regulatory requirements that apply to facilities triggering 

NSR permit review: 

Control Technology Requirements. For each pollutant with a "significant net increase" in emissions, 

NSR requires the installation of the most advanced and adequately demonstrated pollution control 

technologies that are currently available. If the plant already has pollution controls installed, NSR 

determination may require the plant to upgrade the performance of the existing technology. 

Specifically, if the plant is located in an areas meeting NAAQS standards ("attainment areas"), the source 

must install pollution control technologies meeting "best available control technology" considering cost 

and other factors, while a source located in areas not meeting such air quality standards 

("nonattainment areas") must install control technology capable of achieving the "lowest achievable 

emission rate• without regard to cost. More specifically, if the plant operator was only seeking to 

perform maintenance on the plant, NSR can result in the plant operator being required to apply new 

control technologies and Incur capital expenses that were not intended and whose financial impact may 

negatively impact the viability of the planned project. 

3 
124 


28078.098

RegiOnal Air Quality Requirements: 

The NSR program also establishes several major requirements to protect air quality. One key 

requirement is the performance of e>Ctensive air quality modeling {and/or ambient air quality 

monitoring) to demonstrate that the Increased emissions from the modified source will not violate 

NMOS, nor significantly degrade air quality in attainment areas.' If modeling shows the modification 

would result In these air quality impacts, then some type of mitigation will be necessary. This mitigation 

could require the source to achieve even more stringent emission controls or obtain offsetting emissiOn 

reductions from other sources in the same air shed (emissions offsets). 

In the case of modified sources located in areas not meeting NMQS (referred to as nonattainment 

areas), NSR requires the source to obtain emissions offsets and demonstrate that there will be progress 

toward achievement of the NMOS for any nonattainment air pollutant. 

Each of these requirements could result in additional expenditures to a facility that would be an 

impediment to proceeding with the project, particularly if the expenditure for additional control 

equipment may not have been originally contemplated through a proposed maintenance or efficiency 

project. 

1 Another air quallty requirement is that the performance of modeling that demonstrates that the sourc:e1

$ inc.reased 

emissions will not adVQfSety impact visibility or other ualr quality related values"' In a national park, 

4 
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Mission Statement 

The Carbon Utilization Research Council (CURC) is an industry coalition focused on technology 

solutions for the responsible use of our fossil energy resources in a balanced portfolio to 

support our nation's need for reliable and affordable energy. Created in 1998, CURC serves as 

an industry voice and advocate by identifying technology pathways that enable the nation to 

enjoy the benefits of abundant and low cost fossil fuels in a manner compatible with societal 

energy needs and goals. 

About CURC 

The strength of our coalition derives from the breadth of its membership, which includes fossil 

energy producers, electric utilities that rely upon coal and natural gas for electricity production, 

equipment manufacturers and technology innovators, national associations that represent the 

power generating industry, and state, university and technology research organizations. 

CURC believes that future energy needs can be effectively met through collaborative public and 

private sector research to expand technology choices for private sector commercialization. 

Members of CURC work together to evaluate technology development needs, design 

appropriate research and development programs to enable those technology choices, and 

identify federal programs and policies that are needed to support this activity. 

CURC engages in advocacy efforts with policymakers, NGOs and other stakeholders to ensure 

that development of advanced fossil energy technology options are an integral part of the 

larger national energy plan. Our successful track record is evidenced by three decades of fossil 

based electricity generation with significantly lower emissions per unit of energy used. 

CURC has built a positive and non-partisan reputation before the U.S. Congress and throughout 

the Executive Branch as an informed organization that can be relied upon for useful fact-based 

technology information and policy ideas in support of our mission. 
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Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

Leadership in Reducing Air Emissions Through Innovation" November 15,2017 

It is the view of Cloud Peak Eneryy, one of the nation's largest coal producers, that Congress 

must support policies conducive to a long-term, innovation-led, regulatory and investment 

framework that balances the goals of economic growth and prosperity, addresses the legitimate 

concerns Americans have about emissions and climate, and ensures the American people 

continued energy security and affordability'. That future is currently at risk and, while the 

punitive, coercion-led policies imposed by the Obama administration are being rescinded, 

without support from Congress to ensure long-term innovation promotion and leadership to 

address these issues, dire consequences lie ahead. 

A Proven Track Record of Success with the Innovate-then-Regulate Model, Now Broken 

and Abandoned 

The history of emissions reductions from fixed sources and automobiles in the United states 

has been one of regulation following, and incentlvizing, the innovation that has permitted and 

driven the very substantial cuts in a wide range of emissions over the past 50 years. Nowhere is 

this more true than in the case of coal firad power plant emissions. During the period 1970 

through 2008, for example, coal use in power generation increased dramatically, by 183%, while 

key emissions from coal power plants declined by en aggregate of 82% to 96% "· 

During that period, the Clean Air Act, and regulatory regimes developed under its authority, 

were built on the basis of the best available technology, and that technology continued to evolve 

and progress. "The Clean Power Plan" authored by the Obama administration, broke that model 

and, for the first time, instead of pursuing the successful innovate-then-regulate model, moved 

to a regulate-and-hope model. With the New Source Review and 111 (b) and (d) rules, the EPA 

essentially crafted a regulatory regime that was predicated on, and required compliance 

through, the deployment of technology neither fully developed nor available for commercial 

implementation. 

Failure to adhere to the innovate then regulate approach, in tandem with the law of unintended 

consequences, can perhaps be best seen in the case of the New Source Review (NSR), which 

can be, and has acted as, an inhibitor to innovation in emissions raduction. NSR is an air quality 

permitting program created by Congress in the 1977 amendments to the Clean Air Act (CAA). 

The purpose of NSR In 1977 was to require that best available pollution control technology be 

installed on new sources constructed in areas that are in attainment of national ambient air 

quality standards (NAAQS), and to require even better-performing pollution control technology 

in areas that are not in attainment of the NAAQS. As written and intended in 1977, NSR was 

entirely compatible with the best practice Innovate-then-regulate philosophy. 

Yet, there enters the law of unintended consequences. When the NSR program was enacted in 

1977, C02 and other greenhouse gases (GHGs) were not regulated air pollutants under the 

CAA. Now, 40 years later, GHGs (including C02) have been made subject to the CAA, even 

though Congress has not amended the Clean Air Act with that explicit intent, and the use of 

NSR vis-a-vis GHGs is proving counterproductive. ln part because it was not designed with 

C02 in mind, the NSR program is actually inhibiting C02 emissions reductions at existing 

plants, as EPA has taken the position that projects designed to reduce C02 emissions, 

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Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

Leadership in Reducing Air Emissions Through Innovation" November 15, 2017 

including efficiency improvements, can trigger NSR permitting requirements, making those 

projects prohibitively more expensive. For utilities, the NSR program has significantly 

discouraged the implementation of efficiency improvement projects as well as other routine 

maintenance, repair, or replacement activities at existing coal plants. Thus, NSR currently 

stands in the way of innovations that would reduce C02 emissions and must be reformed. NSR 

reform is an important part of the legislative action required by Congress. 

All Stick and No Carrot Makes Innovation Harder. 

Furthermore, in recent years, the proven success of innovation and incentive driven regulation 

has been ignored in certain corners. There, strong advocates for replacing the carrot with a very 

heavy stick, in the form of punitive regulation of various types, and of carbon taxes, are hard at 

work. Instead of using tax incentives to reward innovation and technology deployment, this new 

philosophy seeks to use the coercive power of the federal government and tax policy to enforce 

C02 avoidance in ways that will almost certainly stifle innovation. In the context of, for example, 

power plant C02 emissions, not only did the Clean Power Plan establish a regulatory regime 

that required compliance through technology that had not yet been fully developed or 

demonstrated viable for commercial scale deployment, it failed to recognize and establish clear 

criteria that would determine the scientific and economic viability of such technology. In doing 

so, it deterred innovation in those areas; encouraging instead, lower risk, but ultimately 

counterproductive, C02 avoidance strategies. When punished for producing C02, rather than 

rewarded for avoiding it, innovation is stifled. A critical area where innovation must be 

encouraged and promoted is in the development of commercially viable Carbon Capture, 

Utilization and Storage (or Sequestration)- CCUS. This cannot be achieved only through 

incentives like tax credits, but must also be promoted through robust government funding, not 

only for pure research, but also for programs and research aimed at acoelerating technology 

commercialization. 

Technological Innovation Critical to Economy and Environment 

According to the United Nations Intergovernmental Panel on Climate Change (UNIPCC), source 

of, and foremost global proponent of, the oft-quoted "international consensus on climate 

change", reducing C02 emissions to the levels that, in their view, are required to achieve 

"climate stabilization". may not be possible at all without the wide-scale deployment of CCUS 

technology, and would, at a minimum, be 13B% more expensive without that wide-scale 

deployment". To put that "13B% more expensive" in context, It would cost an additional2% to 

3% of global GOP every year through the end of the century, tens and tens of trillions of dollars 

more, to achieve the IPCC defined emissions levels necessary for "climate stabilization" without 

the wide-scale deployment of CCUS'•. Yet, many of the staunchest proponents of action to 

achieve 'climate stabilization" have done little or nothing to promote policies that will drive the 

technological innovation and deployment that the foremost expert body on climate change has 

said is critical to achieving that goal. Indeed, they have actively opposed the innovation 

necessary to further develop and deploy such technology. 

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Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

Leadership in Reducing Air Emissions Through Innovation" November 15, 2017 

In particular, the continued expenditure of billions of dollars a year to subsidize wind and solar 

energy production is a complete waste of resources. Those resources should be redirected 

immediately from wind and solar production subsidies to promoting CCUS innovation. According 

to their advocates, wind and solar are already market competitive, and are certainly 

commercially viable•. They have benefited from 40 years of relentless policy promotion at the 

state and federal level, and have received far in excess of $100 billion in federal subsidies alone 

in the last decadev1

• Despite this enormous promotion and these lavish subsidies for nondispatchable energy sources that have distorted wholesale electricity mark.ets and disrupted grid 

stability, wind and solar still contribute less approximately 7% of all US electricity according to 

the Energy Information Administration. Meanwhile, coal powered electricity generation, which 

constitutes the single largest source of stationary C02 emissions, is also the single largest fuel 

source for US electricity generation in the country, at over 31%. Thus, by using a fraction of the 

resources that have been dedicated to wind and solar, the largest single source of C02 

emissions could be largely wiped out with the wide-scale deployment of CCUS for coal, far 

exceeding any emissions reductions scheme yet envisaged. 

The Obama-era punitive regulatory approach that encouraged short-term avoidance of, rather 

than long-term solutions to, emissions will continue to guide utilities until such time as policies 

are put in place that reestablish the innovate then regulate model. During the Obama era, 

chasing subsidies by building wind and solar, regardless of their inefficiency for the grid, and 

switching from higher C02 producing coal to lower C02 producing natural gas were the 

expedients for regulatory compliance, Yet, according to the IPCC, these actions simply will not 

achieve the emissions reductions claimed necessary for climate stabilization. So, while as a 

short-term cheat under the Obama punitive regulatory regime, such measures have yielded onpaper results, they are not long-term and lasting. In effect, affordable coal-power, regional 

economies, coal communities, and the livelihoods and lives of people dependent on coal are 

being sacrificed simply to appease the anti-coal activist community. Because, according to the 

scientific and economic consensus on which they base the need for climate action, without the 

wide-spread deployment of CCUS, among other measures, climate stabilization may not be 

possible and will cost an additional2%-3% of GDP through the end of the century. And this 

short-sighted gaming of the system is not itself without enonnous cost. Destroyed regional 

economies and the loss of high-paying anchor jobs in Appalachia and along the Ohio River 

Valley clearly demonstrate the very substantial social, economic, and political impact of gaming 

the system by sacrificing coal. 

The current approach to emissions regulation is best characterized as "kick the can down the 

road and let it be someone else's problem". Because when every coal fueled power plant in the 

country is shut, and heavlly subsidized wind and solar energy have fully saturated a, by then, 

wildly inefficient US electric grid, the emissions targets that the scientific and economic 

consensus defines as necessary for climate stabilization will not have been achieved. Then, 

having destroyed coal communities and regional economies around the country, all the money 

that would have kept them alive and well by driving Innovation, development, and deployment of 

CCUS, will still have to be spent· for CCUS on natural gas. So, if the climate stabilization 

targets established by those who deem it the single greatest threat to humankind are to be met, 

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Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

Leadership In Reducing Air Emissions Through Innovation" November 15,2017 

the same technology that would keep coal an affordable and plentiful energy source and save 

the economies, communities, and jobs that coal provides must be developed. Why then should 

they be sacrificed to appease anti-coal activists in the short-term? 

Reallocation of Resources Needed -Action Must be Public and Private 

Wide-scale deployment of CCUS requires similar support and promotion to that which other 

emergent technologies have benefitted from. It requires legislative promotion, regulatory 

support, tax incentives, and the direct promotion of technology development through federal 

government R&D. It further requires that utilities, rural electric coops, and C02 capture 

beneficiaries such as those using it for enhanced oil recovery, be extended additional 

mechanisms for the financing of CCUS projects. Later in this written testimony, we will present 

specific recommendations touching on all these areas to create a long-term policy framework 

that should enjoy strong bi-partisan support and will drive innovation and emissions reductions 

for decades to come. 

The promotion of, and investment in, technology innovation cannot be made entirely the 

responsibility of government. While the vastly diminished financial position of coal producers in 

recent years limits the extent of support for such efforts that is economically possible, Cloud 

Peak Energy is, nevertheless, actively involved in, and provides financial support for, actions 

and institutions to promote and support such innovation. These include, but are not confined to: 

A fwe year investment in support for the National Carbon Capture Center aimed at 

promoting technology development and innovation that will lower the costs of CCUS 

technology deployment; 

Membership in and support for the Carbon Utilization Research Council (CUR C), the 

foremost institution in the US that brings together coal and natural gas producers, 

technology developers, academic institutions, and utilities to develop innovation roadmaps that inform policies to promote technology innovation and effectively regulate 

emissions based on available and viable technology; 

Membership in and support for the Global CCS Institute, a member led, premier global 

organization the mission of which is to accelerate the deployment of carbon capture and 

storage (CCS) as an imperative technology in tackling climate change and providing 

energy security; 

Participation in, as a United States Department of Energy designated member, the Coal 

industry Advisory Board to the International Energy Agency, a body that provides input 

and policy recommendations to promote global energy security while addressing 

concerns about emissions and climate change; 

Support for the University of Wyoming's School of Energy Resources and Carbon 

Management Institute in their research efforts to develop the innovative technologies 

that will drive future emissions reductions; 

Involvement in the National Enhanced Oil Recovery Initiative, an organization promoting 

policy solutions that will help drive deployment of CCUS technology and help ensure 

energy security through low cost oil 

4IPage 
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Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

leadership fn Reducing Air Emissions Through Innovation" November 15, 2017 

Involvement in the Energy Innovation Reform Project, a coalition of industry, economic, 

academic, and labor organizations committed to cost-effective, Innovation-led 

approaches to emissions reductions. 

No Free-Market in Energy and Laissez-Faire Won't Work 

While innovation must lead and drive the regulatory frameworks that are developed to address 

concerns about emissions and climate, and the legislation on which such frameworks are based 

must balance concerns about climate, economy, and anergy security, it is unrealistic to simply 

suggest that "innovation will happen and regulation will follow". There is no "free-market" for 

energy. Energy markets are intensely regulated and their operation is entirely subject to high 

degrees of government intervention. Given the very long-term investment horizons involved in 

power generation projects, regulatory predictability is required to guide utility investment and 

technology development. For example, while many stakeholders are pleased to see the deeply 

flawed and illegal Clean Power Plan being rescinded, it is important that it be replaced with a 

lasting, long-term framework around which utilities can make plans. That framework must 

incentivize Innovation to reduce C02 emissions from the existing coal fleet and get new coal 

fueled electricity generation buiH with low to no emissions. 

As outlined in a letter from Cloud Peak Energy President and CEO, Colin Marshall, to President 

Trump earlier in 2017, we believe that Congress must support domestic regulatory predictability 

promoting long-term investment in coal technology, so that coal can be part of a long-term 

energy Mure that ensures prosperity while addressing Americans' concerns about C02 and 

climate. Congressional action in the following areas is extremely important to ensure the long 

term viability of coal as an affordable energy source and an economic anchor to regional 

economies across the country. 

• Amendment and expansion of the 45Q Tax Credit for carbon capture and Enhanced Oil 

Recovery 

Creation of Private Activity Bonds for fossil fuel emissions reduction projects that will 

help markets finance technology innovation and deployment 

• Extending the tax and equity benefits of Master Limited Partnerships to carbon capture 

projects 

Authorizing the Department of Energy to engage in Price Stabifization Contracts that 

diminish the volatility impact of oil price fluctuation on carbon capture projects built 

around Enhanced Oil Recovery 

Ensuring robust funding for Department of Energy Research and Development projects 

aimed at creating and making commercially available the technology that will allow the 

capture, use, and sequestration of carbon from coal and natural gas powered energy 

production and manufacturing. 

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Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

Leadership in Reducing Air Emissions Through Innovation" November 15, 2017 

Bi-Partisanship Required. Because Killing Coal Won't Save the World. 

We believe that there should be strong bi-partisan support for such an approach. If the country 

continues along its current path, coal communities, the jobs and industries that anchor them, 

and the livelihoods of the people who depend on them, are at serious risk, and their demise 

would be a substantial cost to federal, state, and local governments. As a result, energy prices 

in the US will rise, with a chilling effect on growth and GDP; innovation and technology 

development to address fossil fuel emissions will be stifled, and; the climate stabilization targets 

set by those who deem climate change "the single greatest threat to global security" are 

extremely unlikely to be achieved. Inaction to widely deploy carbon capture and sequestration 

technology will most certainly require additional expenditures on the order of 2% • 3% of global 

GOP more through the end of the century to achieve substantial emissions reductions. 

Bi-partisan support for policies that promote innovation has been on display in the Senate of 

late. During recent hearings on "Expanding and Accelerating the Deployment and Use of 

Carbon Capture, Utilization, and Sequestration" in the Environment and Public Works 

Committee, there was a remarkable degree of bi-partisan support for actions and legislation that 

would help move CCUS technology deployment forward. Such legislation Includes The 

FUTURE Act (S. 1535) with some 25 co-sponsors from both parties, including Committee 

Chairman, Senator Barrasso (R-INY), and Committee member, Senator Whitehouse (0-RI), as 

original co-sponsors. Similar legislation exists in the House (H.R. 3761), introduced by 

Chairman Conaway (R-TX), with nearly fifty co-sponsors from both parties, showing that an 

innovate then regulate approach to emissions reductions that balances the goals of economic 

prosperity, environmental stewardship, and energy security does, in fact, enjoy bi-partisan 

support. 

If, as many of the most voluble advocates for action to address climate change claim, it is "the 

single greatest threat facing mankind", then their response to date is grotesquely and 

Irresponsibly underwhelming"n. The same scientific and economic consensus that they point to 

as the basis for the call to action recognizes that fossil fuels will be part of the global energy mix 

far the foreseeable future and that carbon capture, utilization where possible, and storage must 

be rapidly deployed to achieve the climate stabilization they say is necessary•iii. In effect, climate 

activists who refuse to support the rapid development and deployment of CCUS are themselves 

deniers. 

Today, the only known technology that will allow the world to continue to benefit from the 

economic growth and prosperity that affordable fossil fuels deliver, while addressing the 

legitimate concerns people have about fossil fuel emissions, is carbon capture and 

sequestration. Regardless of one's views on the legitimacy of concerns about C02 and climate, 

action to reduce C02 emissions is being taken around the world. The US should take the lead 

in developing and commercializing that technology, thereby creating new jobs and prosperity 

while protecting coal jobs, communities, and plentiful affordable energy. 

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28078.106

Written Testimony from Cloud Peak Energy for Senate EPW Hearing: "Promoting American 

Leadership In Reducing Air Emissions Through Innovation" Novamber 15, 2017 

Human history and development have been all about innovation. One of the greatest 

innovations in human history, one that has lifted billions out of poverty, ignorance, and darkness 

has been harnessing fossil fuels for industry, power, and light. The next great leap in human 

innovation must be in developing and deploying the technologies that will allow humankind to 

benefit from fossil fuel energy, while severely limiting emissions from fossil energy power 

generation. 

Submitted by: 

Richard P. R.eavey 

Vice President Public Affairs 

Cloud Peak Energy Resources LLC 

385 lntert<>Oken Crescent. Suite 400 I Broomfield I CO 80021 

1111'!1 (LOUD PEAK ~ ..... ,,. 

www.cfoudoeakenergy.com 

; Cloud Peak Energy Inc. (NYSE:CLD} is headquartered in Wyoming and is one of the largest U.S. coal 

producers and the only pure-play Powder River Basin coal company. As one of the safest coal producers 

in the nation. Cloud Peak Energy mines low sulfur, subbituminous coal and provides logistics supply 

services. The Company owns and operates three surface coal mines in the PRB. the lowest cost major 

coal producing region in the nation. The Antelope and Cordero Rojo mines are located in Wyoming and 

the Spring Creek Mine is located in Montana. In 2016, Cloud Peak Energy shipped approximately 59 

million tons from its three mines to customers located throughout the U.S. and around the world. Cloud 

Peak Energy also owns rights to substantial undeveloped coal and complementary surface assets in the 

Northern PRB, further building the Company's long-term position to SeNe Asian export and domestic 

customers. With approximately 1,300 total employees. the Company Is widely recognized for its 

exemplary performance ln its safety and environmental programs. Cloud Peak Energy is a sustainable 

fuel supplier for approximately three percent of the nation's electricity. 

' Source: Department of Energy, Fossil Energy Research Benefits Brochure, June 2011 . 

';Intergovernmental Panel on Climate Change (IPCC). Assessment Report 5. M~igation of Climate 

Change, 2014. Edenhofer, 0., et al 

ivAn International Commitment to CCS: Policies and Incentives to Enable a Low-Carbon Energy Future. 

Co<~! industry Advisory Board Submission to the International Energy Agency. November 2016. 

Humphreys et al. Page 18 

''Soler and Wind Energy Start to Win on Price vs. Conventional Fuels". The New York Times. Nov. 23, 

2014. hltps://www .nytimes.com/2014/11/24/business/energy-environmenllsolar-and-wind-energy-start-towin·on-price-vs-conventional-fuels.html?partner-rss&emc=rss&_r=o 

,; "Direct Federal Financial Interventions and Subsidies in Energy in Fiscal Year 2013". Energy 

Information Administration. March 2015. 

'""No challenge--no challenge--poses a greater threat to future generations than climate change," 

President Obam<~. in address to the United Nations General Assembly, January, 2015 

viii Intergovernmental Panel on Climate Change (IPCC). Assessment Report 5, Mitigation of Climate 

Change, 2014. Edenhofer, 0., et al 

Reference Material in Annex: Charts on Coal Consumption & Emissions Reductions 

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133 

Senator BARRASSO. Senator Carper. 

Senator CARPER. I am counting the number of times you say Wyoming today. We have a little town just south of Dover called Camden Wyoming. I go there a lot. I go through it a lot. So I am not 

in Camden Wyoming as much as he is in Wyoming. 

Senator BARRASSO. We can start with the Neil Young song, the 

Emperor of Wyoming. 

Senator CARPER. There you go. We sure could. 

I want to go back to you for a question, Ms. Lipman. The Administration, this current Administration here in Washington signaled 

that it is interested in weakening heavy-duty and light-duty vehicle 

regulations, as you know. If we do that, what kind of effects is that 

likely to have on innovation and job creation? 

Ms. LIPMAN. My testimony and my written testimony is a little 

more detailed. We have told a very optimistic story about the tremendous progress and the recovery in the auto sector and in the 

supply chain that we have seen domestically as a result of strong, 

certain, long term standards. Unfortunately, the converse is also 

true. If we were to roll back standards, or if we were to even introduce great uncertainty as to the future of the standards, we put 

jobs at risk, we put innovation at risk, and particularly we put at 

risk those investments that companies are thinking about making 

in the near term. 

Our tier 1 suppliers—and I recently heard a supplier association 

talk to this—they operate worldwide, and they are looking at where 

will be the place that we are deploying this next generation of technology. Where should be put our R&D? Where should be put the 

manufacturing that goes with it? And if folks are not convinced 

that we are moving forward, we risk losing those investments. 

Senator CARPER. Thanks. 

There has been an ongoing discussion around the targets for energy efficient vehicles and that we are on a glide path between 

2025 to a very rigorous target, and then there is nothing more in 

terms of target beyond 2025. In conversation with the auto industry, environmental folks, others about providing some flexibility between 2025, but then targeting for more rigorous target effective in 

2030. That gives the industry some flexibility near term, but it 

gives them the certainty of something long term to focus on. 

I was mentioning to the Chairman, I was present at the Detroit 

Auto Show 10 years ago when the Chevrolet Volt was launched. It 

got about 35 miles per charge. This year, when the Chevrolet Volt 

was launched, it gets 240 miles per charge. And it is only going to 

get better. Batteries only get better, and that is why we are seeing 

Ford and GM and a bunch of other companies here in this country 

and around the world saying we are going to do this, we are going 

to do this. 

How important is it to have certainty beyond 2025 in this regard? 

Ms. LIPMAN. At the risk of repeating myself and my testimony—— 

Senator CARPER. Just repeat yourself briefly. 

Ms. LIPMAN. Yes. Strong, long term certain standards are critical, and the more that industry can look out, can make those 

plans, again, not just the automakers, but the suppliers, the better. 

134 

And I think to the extent that it is possible to extend that trajectory, the more we are likely to have people willing to make the 

deep commitments and long term commitments to the next generation of technology in America. 

Senator CARPER. OK. Thank you. 

Ross, just a quick comment, please, on this. 

Mr. EISENBERG. So, we still have a mid-term review that we have 

to complete for the current set. This is an industry that has never 

really shied away from long term standards. I just hope that when 

we get there it is a data driven process and it gets to a place where 

everybody wins. We were able to see that the first round, and 

frankly, a little bit of the second round, so hopefully it all works 

out well in the end. 

Senator CARPER. OK. Thank you. 

Mr. EISENBERG. An inclusive process is a good one. 

Senator CARPER. Thanks very much. 

My last question for the panel is how do we make clean air a bipartisan issue again? I thought this was going to be a great hearing. It has been a good hearing. I have been excited about this 

hearing for weeks. But how do we make this a bipartisan issue 

again? What are some of the suggestions that you would give us 

that we can maybe work across the aisle to lift up communities 

that are being left behind, like my native State of West Virginia, 

while continuing our clean energy global leadership? 

Kipp, do you want to lead us off? 

Mr. CODDINGTON. Yes. Thank you, Senator Carper. I actually 

view this as a bipartisan issue, and I am coming at it from the 

point of view of Federal support for research and development. And 

certainly sitting in the States outside of the Beltway, I think there 

is support for the advancement of these technologies and the ongoing critical role of the Federal Government. So call me politically 

naive, but I actually view these issues as bipartisan at the end of 

the day, and we are very thankful for the ongoing Federal support 

that we have received. 

Thank you. 

Senator BARRASSO. If I could just follow up on that. Mr. 

Coddington, this will be my last question as well, because I was in 

the—— 

Senator CARPER. I was asking the whole panel. 

Senator BARRASSO. Oh, I apologize. 

Senator CARPER. Same question. How do we make clean air a bipartisan issue again? Any suggestions of how we can move in that 

direction? 

Mr. EISENBERG. So, I have been asking the same question. I testified before the Energy and Commerce Committee back in February and said, hey, it is time to really put our hands together and 

figure out how to modernize some of these policies, like you guys 

did with TSCA. I mean, this is begging for a similar approach. But 

to your point, there has to be a lot of work done to build trust and 

make it a bipartisan issue. 

Our hope is that maybe by building around some of these areas 

that get in the way of clean energy and efficiency gains we can 

start to build some of that trust up and some of those working relationships up. It is not, in our view, a good versus evil kind of thing; 

135 

we are all driving toward the same end zone here. We just need 

to sort of get passed some of the past fights that we have had and 

work toward something positive. 

Senator CARPER. All right, thanks. 

Zoe. 

Ms. LIPMAN. We are finally coming together at least on the 

panel. 

Senator CARPER. Seems like kumbaya moment. 

Ms. LIPMAN. We also view this as a tremendous opportunity to 

achieve health and environmental gains that we know are supported by both sides of the public, if not both sides of the aisle. But 

also there is a tremendous opportunity to both engage all the 

stakeholders, as you mentioned, Ross. I think this is critical, and 

it can be done through a variety of processes. We do it at a State 

level, and ourselves, have seen tremendous opportunity. And the 

second is to continue to connect this to rebuilding manufacturing 

and good jobs in America. And there is tremendous opportunity to 

bring folks together around how does meeting our climate and energy goals help drive forward an agenda to rebuild America’s economy, which I think we all share. 

Senator CARPER. Thanks. 

Mr. Chairman, just a closing thought, if I could. This kind of conversation with you and me. I think Shelley put her finger on something, and she represents a State that has great dependence still 

on coal and also on natural gas. Certainly, Wyoming does. We are 

moving toward electric powered vehicles. If I had any question 

about that a year or two ago, I don’t anymore. And with the announcements coming out of Ford and GM, it is clear that that is 

where we are headed here in this country, too. 

And her point—and it is a very good point—is how are we going 

to generate the electricity to fuel those vehicles. And the source of 

the generation of that electricity could be coal. It has to be really 

clean coal. I think we have the technology. We are moving in that 

direction. After long, long ramp-up, we are moving in that direction 

to actually be able to do that a lot better. Certainly, natural gas 

and renewables. But at the end of the day, how we generate electricity in a clean way and put those vehicles on the road using virtually no petroleum for a lot of those vehicles, that is going to do 

wonders for the quality of our air, and we just need to lead the 

charge. We have to be leading the charge in technology to get that 

done; not only on the clean coal side, but also in the generation of 

storage for batteries. If we do that, we will create just a truckload 

of jobs. 

Thank you all. 

Senator BARRASSO. Thank you, Senator Carper. 

A final for Mr. Coddington. I am delighted I was in the State 

Senate in Wyoming, in the legislature, at the time that the School 

of Energy Resources was brought into play, and it is wonderful to 

see here we are, a decade or so later, with significant successes. 

I wanted to mention to you that the University of Wyoming is 

committed to research that seeks collaborative solutions to energy 

and environmental needs. 

My final question is could you just explain how the approach at 

the University of Wyoming School of Energy Resources adopts is 

136 

unique and how other States might be able to benefit from a similar collaborative approach? 

Mr. CODDINGTON. Absolutely. Thank you, Mr. Chairman. So, the 

School of Energy Resources is separately funded by the University 

of Wyoming legislature, and it has this bridge building applied energy, applied research role, and the goal of it is to ensure that academic research, in this instance that has an energy focus, actually 

has a perceived outcome that is going to benefit all relevant stakeholders and taxpayers in the State of Wyoming. 

So we do work collaboratively with colleagues on campus. We 

work a lot with industry partners. We have a close working relationship with the Wyoming legislature. So we are supporting academic research, but we always have in the back of our mind what 

is the potential return for the taxpayer and those who are funding 

universities such as ours. So I think it has been a successful model, 

and it is a privilege to be there, and thank you for your support 

of it, Mr. Chairman. 

Senator BARRASSO. Well, thank you very much. 

Thank you to all three of our witnesses. I thought they did a 

wonderful job in discussing this topic. 

Senator CARPER. He always says that. 

[Laughter.] 

Senator CARPER. No, he doesn’t. I always say that. 

Senator BARRASSO. He always says that. 

I would remind the members that other members of the Committee may be submitting written questions for the record, so the 

hearing will remain open for 2 weeks. I want to thank you again 

for being here, for your testimony on this important issue. 

The hearing is adjourned. 

[Whereupon, at 11:16 a.m. the Committee was adjourned.] 

[Additional material submitted for the record follows:] 

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• 

••• 

~·· December 6, 2017 

American Coatings 

tSSO 1.1.TIOW 

The Honorable John Barrasso, Chair 

Committee on Environment and Public Works 

U.S. Senate 

Washington, DC 20510 

The Honorable Thomas Carper, Ranking Member 

Committee on Environment and Public Works 

U.S. Senate 

Washington, DC 20510 

RE: Promoting American Leadership in Reducing Air Emissions Through Innovation Hearing, November 

15, 2017; Statement of Support on behalf of the American Coatings Association, Inc. 

Dear Chairman Barrasso and Ranking Member Carper: 

The American Coatings Association (ACA) is pleased to submit this statement of support for the 

Committee on Environment and Public Works hearing on "Promoting American Leadership in Reducing 

Air Emissions Through Innovation," and to showcase the efforts of the coatings industry in reducing air 

emissions. 

ACA is a voluntary, non-profit trade association working to advance the needs of the paint and coatings 

industry and the professionals who work in it. The organization represents paint and coatings 

manufacturers, raw materials suppliers, distributors, and technical professionals. ACA serves as an 

advocate and ally for members on legislative, regulatory and judicial issues, and provides a forum for the 

advancement and promotion of the industry through educational and professional development 

services. ACA's membership represents over 90% of the total domestic production of paints and 

coatings in the country. 

ACA is eager to highlight the coatings industry's successes in reducing air emissions from our products 

and our facilities due to aggressive and robust research and development activities. Innovation has 

driven market demand for environmentally friendly products, which has resulted in significant 

reductions in both hazardous air pollutants (HAPS) and volatile organic compound (VOC) emissions from 

production in recent years. At our recent Coatings Industry Policy Summit, ACA sponsored a luncheon 

for congressional staff to specifically discuss these and other innovations by coatings manufacturers. 

The Coatings Industry's Addresses Environmental Issues Proactively 

The paint and coatings industry has taken steps for maximum environmental improvements by 

managing and minimizing toxins and wastes, reducing air emissions, and promoting product and 

environmental stewardship. Here is a short list of our environmental successes: 

90 1 NEW YORK AVEj NW, SUITE 300W • WASHINGTON, DC 2000 1 •T 202.462.6272 • WWW.PAINT.ORG 
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Committee on Environment and Public Works 

Hearing on "Promoting American Leadership in Reducing Air Emissions Through Innovation 

November 15, 2017 

More than 90% of architectural coatings sales in the United States are now for environmentally 

preferable water-based paint. 

VOC emissions from architectural coatings have drastically decreased over the last few decades, 

even while the use of architectural coatings has increased over the same period nationwide. 

California's South Coast Air Quality Management District estimates that VOCs from architectural 

coatings in the Los Angeles area -the air basin with the most severe air quality issues in the 

country- decreased by over 50% between 2008 and 2014. 

The U.S. Environmental Protection Agency's {EPA) Toxic Release Inventory (TRI) indicates 

releases by the paint and coatings sector decreased by 81% between 1990 and 2014. Toxicityweighted results for air releases present an even more significant decline, decreasing 94% from 

1990. Air toxics- also known as HAPs- decreased by 82% between 1990 and 2014, and 

toxicity-weighted air toxics releases declined by 94%. 

The paint and coatings industry reduced its total production waste by 48%, from 1995 to 2013, 

while increasing the percentage of the total waste it recycles by over 81% during that period. 

The paint, coatings, and adhesives manufacturing industry reduced its generation of Resource 

Conservation and Recovery Act (RCRA) hazardous waste in the United States by over one-third 

(34.8%) since 2001. 

97% of all waste solvents from paint and coatings manufacturing facilities are reclaimed for 

future use. 

The total quantity of electricity purchased and used for heat and power- and as a result, 

greenhouse gas emissions- from the paint and coatings sector decreased by 17.8% between 

2007 and 2012. 

Here are some real examples of how the coatings industry's research and development efforts have 

resulted in environmental gains, including reductions in air emissions in a variety of market sectors, as 

well as strides in sustainability. 

Architectural Paints 

Many architectural paints both interior and exterior- are now paint and primer in one 

product, which allows for a paint-job with fewer coats, translating to greater efficiency and 

environmental advantages. These combinations are designed to provide a high-quality 

application that is more durable and lasts longer, thereby reducing the frequency for repainting 

or multiple applications. 

Emulsion technology used in architectural paints allows for low-VOC, near odorless paints with 

high-scrub resistance, and come in a variety of finishes, from flat to semi-gloss sheens. 

Certain architectural paints use renewable, bio-based or recycled ingredients, such as recycled 

plastic and soybean oil, shifting away from organic solvents. Bio-based products are composed 

of agricultural, forestry, or marine materials. Such innovation has been recognized with the 

Presidential Green Chemistry Challenge Award. 

Specially formulated low-emitting interior coatings protect the health and comfort of sensitive 

populations, including children in schools and patients in hospitals. 

2 
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Committee on Environment and Public Works 

Hearing on "Promoting American Leadership in Reducing Air Emissions Through Innovation 

November 15, 2017 

Cool Roofs 

Cool roof coatings not only lower buildings' energy consumption and costs, but also overall 

temperature and stress on the power grid. This effort could help reduce New York City's 

greenhouse gas emissions 30% by 2030. 

According to the National Resources Defense Council, 'smart roofs' employing cool coatings 

technology substantially reduce energy costs and curb carbon pollution. 

The U.S. Department of Energy (DOE) estimates that replacing or resurfacing conventional 

roofing materials with improved reflective elastomeric roof coatings can reduce a commercial 

building's annual air conditioning energy use by up to 25%. 

Aerospace Coatings 

New technology in aerospace coatings can minimize drag in the air and eliminate debris build-up, both 

of which reduce airplane fuel consumption, and thereby, carbon footprint. Such savings have both an 

economic and environmental impact that cannot be understated: a 1% improvement in fuel efficiency in 

the aviation industry can lower fuel costs by $700 million a year, according to the International Air 

Transport Association (lATA). On average, airlines incur about $100 a minute per flight in total operating 

costs, lATA says. Therefore, even saving just one minute of flight time could reduce total industry 

operating costs by more than $1 billion a year and significantly reduce environmental emissions. 

Automotive and Industrial Coatings 

Many additives are made from bio-based molecules, especially those in automotive and industrial 

paints, and give those waterborne paints a better carbon footprint: they enable faster drying times and 

provide a smoother finish. When automakers paint cars, they typically pass them through an oven twice 

to speed the drying process. Such additives make it possible to eliminate one of the baking steps, thus 

reducing the overall energy consumed. Another benefit: the faster drying time can also increase the 

number of cars that can be painted during a work shift. 

Marine 

Special marine coatings called antifouling coatings help reduce the growth of marine organisms on 

immersed areas of ships, which reduces the ship's energy and fuel consumption. Antifouling coatings 

carry tremendous eco-efficiency benefits: when applied to tankers, bulk cargo and other vessel types, 

they can reduce greenhouse gas and other emissions by an average of 9%- no small feat, since 

shipping counts for an estimated 2·4% of global greenhouse gas emissions. 

Communications 

Optical fiber coatings make telephone and internet technology possible by protecting the glass fibers 

that transmit telecommunications signals. Such technology allows an estimated 3.9 million people to 

telecommute, reducing gasoline consumption by 840 million gallons and co, emissions by almost 14 

million tons. 

3 
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Committee on Environment and Public Works 

Hearing on "Promoting American Leadership in Reducing Air Emissions Through Innovation 

November 15, 2017 

Obstacle and Barriers to Manufacturing 

These stories of innovation and environmental successes are amazing and there are many more 

examples in the coatings industry. Research and development, and quite frankly, innovation cannot 

occur without the appropriate regulatory schemes to facilitate these activities. As such, I would like to 

highlight several legislative and regulatory barriers that make such progress less likely. 

Ozone standard 

Implementation oft he 2015 ozone standard required states to identify whether they are in attainment 

or in non-attainment by February 2017. Reviewing the ozone standard is a recurring mandate under the 

Clean Air Act. 

EPA's 2015 final rule on the ozone standard is forcing many states that are currently "in attainment" to 

"non-attainment" status, triggering a requirement to revise their State Implementation Plans and adopt 

even stricter VOC emission regulations for coatings. This triggering event is being realized as ozone 

monitors across the country are demonstrating a marked improvement in air quality under the 2008 

standard of 0.75 ppm. Indeed, the previous standard of 0.75 ppm was not yet fully implemented. 

Cost to the Coatings Industry: EPA's final stringent ozone standards will limit business expansion in 

nearly every populated region of the United States and impair the ability of U.S. companies to create 

new jobs. EPA's lowered range adds unnecessary red tape for companies seeking to expand even in 

areas that can attain those standards. Increased costs associated with restrictive and expensive permit 

requirements will likely deter companies from siting new facilities in a nonattainment area. ACA shares 

the practical concerns of manufacturers regarding potential exorbitant costs that this regulation would 

create for the paint and coatings industry without commensurate benefits to public health or the 

environment. A study conducted by the National Association of Manufacturers (NAM} and NERA 

Economic Consulting, estimated this final rule could cost the economy $140 billion per year, result in 1.4 

million fewer jobs, and cost the average household $830 per year in the form of lost consumption -

making this the "costliest regulation in history" and threatening manufacturing. 

Recommended Solution: ACA urges a two-step solution to this problem: 1) EPA should revert to the 2008 

standard of 0.75 ppm and fully implement this standard so that the forward progress already achieved 

can be extended without unnecessarily burdening the paint and coatings industry with increased 

standards and costs for many years to come; and 2) the Clean Air Act should be amended to extend the 

time for review of the ozone standard to every 10 years. Currently, the law requires a review every five 

(5) years. Extending the review of the ozone standard to every 10 years will allow for more stability in 

the marketplace for formulators while still protecting human health and the environment. 

Once in, Always in Policy 

This "regulation" is a May 16, 1995 EPA memorandum titled, "Potential to Emit (PTE) for MACT 

Standards- Guidance on Timing Issues," from John Seitz, Director, Office of Air Quality Planning and 

Standards (OAQPS), to Regional Air Division Directors- commonly known as the "Once in, Always in" 

memo- and may be found here: https:Uwww.epa.gov/sites/production/files/2015-

08/documents/pteguid.pdf. 

4 
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Committee on Environment and Public Works 

Hearing on "Promoting American Leadership in Reducing Air Emissions Through Innovation 

November 1S, 2017 

A "major source" is defined as a source that has the potential to emit (PTE) hazardous air pollutants 

(HAP) up to 10 tons per year (tpy) of any single HAP or 2S tpy of any combination of HAPs. Sources 

below this threshold are considered "area sources." 

Under the "once in, always in" policy, a major source may become an area source (i.e., minor source) by 

limiting its PTE HAP below the major source thresholds by no later than the first compliance deadline 

listed under the applicable Maximum Achievable Control Technology (MACT} standard (also referred to 

as National Emission Standards for Hazardous Air Pollutants or NESHAP}. However, a source that fails to 

achieve "area source status" by the first MACT compliance deadline must remain subject to the MACT 

even if it subsequently reduces HAP emissions below mojor source levels ot o loter dote. In other words, 

sources will always be subject to the MACT rules, regardless of whether the source is no longer a major 

source of HAP. 

Note that that EPA published a proposed rule on January 3, 2007 to replace the "once-in always in" 

policy rule- (docket number EPA-HQ-OAR-2004-0094. https://www.epa.gov/ttn/atw/gp/fr03ja07.pdf). 

However, this rulemaking was never finalized. 

The coatings manufacturing industry has substantially reduced the use of HAPs since the 1990s. In fact, 

many facilities subject to the Miscellaneous Coatings Manufacturing (MCM) and Miscellaneous Organic 

Chemical Manufacturing MACT (MON) MACTs are now "area source" facilities, but still must comply 

with the MCM requirements even though they are not major source facilities. While many coatings and 

resin manufacturing operations could reduce emissions prior to the first compliance date of the MCM 

and MON, other facilities could not. Facilities that could not reduce their emissions have since installed 

expensive thermal oxidation units. 

This "policy" or "guidance" has been applied by EPA as a "rule," with binding effects on the regulated 

community, including very burdensome compliance costs. This guidance is outdated and unnecessary 

and imposes a substantial burden on industry that well exceeds any benefits. Industry resources spent 

on compliance could be used instead for R&D, or modernization activities. This policy also acts as a 

disincentive for industry, since facilities have no incentive to voluntarily reduce HAP emissions below 

major source thresholds. 

Cost to the Cootings Industry: Thermal oxidation units require a significant capital investment (millions 

of dollars per facility) and annual operation and maintenance costs (several hundred thousand dollars 

per facility per year in fuel cost alone). These units consume large amounts of electricity and natural gas, 

which results in additional emissions of carbon dioxide, nitrogen oxides and carbon monoxide. EPA hos 

estimated thot ins to/lotion ond operating of oir pollution controls for the MCM ond MON rules would 

require on overo/1 energy demond increose of S.83 trillion BTUs; o toto/ copitol expenditure of $184 

ml1/ion; yeorly operating costs of neor/y $91 million; ond on increase in NOx, CO, SOx emissions of 987 

tons per yeor. 

ACA and other organizations have flagged this policy and requested that EPA withdraw or rescind it. 

s 
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Committee on Environment and Public Works 

Hearing on "Promoting American Leadership in Reducing Air Emissions Through Innovation 

November 15,2017 

Thank you for the opportunity to share some oft he exciting innovations of coatings manufacturers as 

well as some of our challenges. Please do not hesitate to have your staff contact me should you have 

any questions or require additional information and these important topics. 

Best regards, 

Heidi K. McAuliffe, Esq. 

Vice President, Government Affairs 

6 
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144 


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Table of Contents 

Introduction ................................................................................................................................................. 1 

Summary of Recommendations ................................................................................................................. 2 

Issues Raised in Response to the RFI ........................................................................................................... 4 

Regulatory and Permitting Problems- Key Themes ................................................................................ 4 

Selection of Priority Specific Regulatory and Permitting Issues ................................................................. 6 

Priority Regulatory and Permitting Issues .................................................................................................. 8 

Overview of Regulatory Reform ................................................................................................................... 29 

Past Attempts at Regulatory and Permitting Reform ............................................................................... 29 

The Need for Collaboration between Regulators and Manufacturers ...................................................... 30 

Review of Existing Regulations ............................................................................................................... 34 

Reforming the Permitting Process ........................................................................................................... 35 

New Rules: Improving the Rulemaking Process ...................................................................................... 41 

Recommendations and Priority Areas for Reform ....................................................................................... 42 

Priority Areas for Reform ......................................................................................................................... 43 

Recommendations .................................................................................................................................. 48 

Conclusion ................................................................................................................................................... 49 

Appendix .................................................................................................................................................... 51 
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Introduction 

Federal regulations impose enormous costs on America's businesses and working families. These costs 

burden virtually every sector of our economy, although the manufacturing sector is disproportionately hard 

hit. The direct costs on manufacturing companies were estimated by the National Association of 

Manufacturers (NAM) to be $138.6 billion as of 2014, 1 though this estimate does not include indirect 

negative effects on the U.S. economy such as reduced innovation and global competitiveness, lost 

investment, and significant job losses. Small businesses are also disproportionately burdened by excessive 

federal regulation. 

As a nation, we can and must do better. That is why, on January 24, 2017, President Trump signed a 

Presidential Memorandum on Streamlining Permitting and Reducing Regulatory Burdens for Domestic 

Manufacturing.2 The Memorandum, which is one part of an Administration-wide regulatory reform agenda,3 

required the Secretary of Commerce, in coordination with other executive departments and agencies, to 

conduct outreach to stakeholders on the impact of federal regulations and permitting requirements on 

domestic manufacturing and to submit a report to the President setting forth a plan to streamline federal 

permitting processes and to reduce the regulatory burdens affecting domestic manufacturing. 

For this report, the Department of Commerce sought input from stakeholders through a Request for 

Information (RFI) published in the Federal Register. 4 The RFI asked industry stakeholders to identify the 

most burdensome regulations and permitting requirements they face and requested feedback on how 

regulatory compliance and permitting could be simplified. This report reflects extensive, thoughtful 

comments received from U.S. manufacturers as well as upstream and downstream industries closely linked 

to the manufacturing sector.s It aggregates and summarizes many of the most important recommendations 

raised by industry and presents the Department's recommendations for streamlining the federal permitting 

processes and reducing the regulatory burdens that affect domestic manufacturing. 

In response to the RFI, industry expressed clear support for the need to protect the environment, human 

health, and worker safety, but shared concrete, detailed concerns about how the federal government tries 

to achieve those objectives. Respondents identified numerous regulatory and permitting problems, 

1 W. Mark Crain and Nicole V. Crain, "The Cost of Federal Regulation to the U.S. Economy Manufacturing and Small Business," A Report for 

the National Association of Manufacturers, September 2014. 

' 82 FR 8667 (January 24, 2017). 

' President Trump has issued several executive orders that provide impetus and direction for regulatory reform efforts. These include gQ 

13771 on Reducing Regulation and Controlling Regulatory Costs. which directs departments and agencies to identify for elimination at least 

two regulations for every one new regulation issued; EO 13777, on Enforcing the Regulatory Reform Agenda, which requires egencies to 

designate a Regulatory Reform Officer (RRO) who is responsible for overseeing regulatory reform initiatives. and to establish a Regulatory 

Reform Task Force (RRTF); and EO 13683 which directs agencies to review regulations affecting the domestic energy industry and to 

appropriately reduce undue burdens to the development of domestic energy resources. 4 82 FR 12786 (March 7, 2017). 

s This report focused on regulatory and permitting issues that directly impact the construction, operation or expansion of manufacturing plants. 

While focused on the manufacturing sector, upstream and downstream industries also submitted comments echoing the concerns of U.S 

manufacturers and highlighting unique issues that they face. This report includes that input because regulatory barriers that adjoining 

industries experience can weaken production and investment in the domestic manufacturing sector. 
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including: onerous and lengthy permitting processes that increase cost, add uncertainty, and inhibit 

investment in new and existing manufacturing facilities; inadequately designed rules that are impractical, 

unrealistic, inflexible, ambiguous, or that show a lack of understanding of how industry operates; 

unnecessary aspects of rules, or unnecessary stringency, that are not required to achieve environmental or 

other regulatory objectives; overlap and duplication between permitting processes and agencies; and overly 

strict or punitive interpretations of guidance, policies or regulations that are often counter to a pro-growth 

interpretation. The Department identified 20 sets of regulations and permitting reform issues from the 

respondents as being a top priority for immediate consideration. See the section titled, "Recommendations 

and Priority Areas for Reform." 

Despite numerous regulatory reform initiatives over the years, businesses continue to express concerns 

about increasing regulatory burdens. The fact that manufacturers continue to raise the same concerns, 

even after decades of regulatory reform efforts by the federal government, indicates a failure on the federal 

government's part to fully engage with regulated industries and fully understand the real-world impact of its 

regulations. There is a vital need for better dialogue and understanding between regulators and industry. In 

the meantime, the urgency for reform continues to grow. A 2017 NAM study states that most 

manufacturers perceive their regulatory burden to have increased significantly, such that reducing their 

current burden is at least as important as reducing the cost of new regulations.6 We must do both. 

Summary of Recommendations 

The Department makes three major recommendations based on a thorough review of responses to the 

RFI. 

Agency "Action Plans". Each agency's Regulatory Reform Taskforce (RRTF) should deliver to the 

President an "Action Plan' in response to all permitting and regulatory issues highlighted in the responses 

to the RFI, with particular attention to the "Priority Areas for Reform" section located at the end of the 

report. 

Annual Regulatory Reduction Forum. There is no regular process for consultations with industry to identify 

specific actions the federal government can take to eliminate unduly burdensome regulations and 

accelerate permitting decisions. Thus, the Department recommends creating an annual, open forum for 

regulators and industry stakeholders to evaluate progress in reducing regulatory burdens. 

Expanding the Model Process in FAST-41. The FAST AcF contains various provisions aimed at 

streamlining the environmental review process, with improved agency coordination through the creation of 

e National Association of Manufacturers. 'Holding US Back: Regulation of the U.S. Manufacturing Sector,' prepared by Pareto Policy Solutions, 

LLC. 

7 Title 41 of the Fixing America's Surtace Transportation Act of 2015 ('Fast-41', codified at 42 U.S. C.§ 4370m) streamlines the Federal 

environmental review and permitting for certain infrastructure projects. FAST -41 created an interagency Federal Permitting Improvement 

Council (FPISC); established new procedures for interagency consultation and coordination practices; authorized agencies to collect fees to 

help speed the review and permitting process; and uses the Department of Transportation's "Permitting Dashboard' to track all covered 

projects. 

2 
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a Coordinated Project Plan and a Permitting Dashboard. Covered projects will typically enjoy better 

coordination, transparency of approvals, and expedited permitting. The Department recommends that the 

Administration use existing authority to extend the use of streamlined permitting procedures in the FAST 

Act to any project that will result in a significant, immediate economic benefit to the United States. For 

example, consideration could be extended to funded, qualifying projects in a new 'economically significant" 

category. Consideration should be extended to complex, funded manufacturing projects that are in late 

stages of development and that can demonstrate significant net direct and indirect benefits to the domestic 

economy. To be eligible for the current streamlining process, projects in this sector or category would still 

need to meet the definition of a 'covered project" under FAST-41. 

FAST-41 provides a model process that could be incorporated into other Federal legislation that governs 

Federal programs and requirements that apply to manufacturing facilities. To expand further the universe 

of manufacturing projects that benefit from streamlined regulatory approval processes, the Administration 

could work with members of Congress to both expand the definition of 'covered project' under FAST -41 

and to incorporate procedures similar to those found in FAST -41 in other legislation applicable to 

manufacturing projects. 

The Department believes that these three recommendations, if executed promptly and with constant. 

aggressive leadership, will yield significant results. Set forth below is (i) a summary of issues raised in 

response to the RFI; (ii) an analysis relating to potential reforms; and (iii) specific recommendations and 

priority areas for reform. 

3 
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Issues Raised in Response to the RFI 

Regulatory and Permitting Problems-" Key Themes 

This section discusses priority regulatory and permitting issues that were identified from the RFI responses 

and related outreachH Respondents did not question the need to protect the environment, human health, or 

worker safety but they expressed concern about how regulations are employed to achieve those objectives, 

including: 

Onerous and lengthy permitting processes that increase cost, add uncertainty, and inhibit 

investment in new and existing manufacturing facilities; 

Inadequately designed rules that are impractical, unrealistic, inflexible, ambiguous or lack 

understanding of how industry operates; 

Unnecessary aspects of rules, or unnecessary stringency, not required to achieve environmental or 

other regulatory objectives; 

Overlap and duplication between permitting processes and agencies; and 

• Overly strict or punitive interpretations of guidance, policies or regulations that are often counter to 

a pro-growth interpretation. 

Table 1 provides some examples of these issues: 

' Responses to the RFI are collected under Docket ID DOC-2017 -0001, at www.regulations.gov. Department of Commerce officials also 

attended a listening session organized by the National Association of Manufacturers (NAM) during which trade association representatives 

highlighted multiple regulatory and permitting issues. NAM, individual companies and trade associations later submitted comments detailing 

these issues to the public docket Upon request, Department of Commerce officials also agreed to meet with company or trade association 

representatives that had submitted comments to the docket. 

4 
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Table 1. Examples of Key Issues that Were Identified by Respondents 

Category Problem Examples from RFI Responses 

Inadequate A regulation is written or implemented with a National Ambient Air Quality Standards 

Rule Design lack of "on the ground" knowledge about how (NAAOS)- unrealistic assumptions 

the regulated industry operates,9 is on background levels; Crystalline Silica 

economically or technologically infeasible, or Exposure Standard 

is based on unrealistic data or assumptions 

There is a lack of clarity around the Clean Water Act (CWA)- Definition of 

requirements needed to comply with the Waters of the United States 

regulation 

The regulation is inflexible or too prescriptive; New Source Review (NSR) Permitting 

overly strict interpretations of policy and Process- inflexibility in allowing for 

guidance aggregation of emissions within a plant 

Overlap or duplication of rules New Source Performance Standards 

(NSPS) and National Emissions 

Standards for Hazardous Air Pollutants 

(NESHAP) -overlap 

A better regulatory approach exists to achieve Resource ConseiVation and Recovery 

the objectives or the approach actually Act (RCRA)- inappropriate 

undermines key regulatory objectives classification of certain waste streams 

as hazardous, which has pe!Verse 

effect of discouraging recycling of this 

waste 

The regulation is outdated Leak Detection and Repair Rulesoutdated monitoring technology 

options 

Regulatory over-reach -goes beyond statute New Source Performance Standards 

or rulemaking (NSPS)- enforcement beyond rules 

Complex, onerous, inefficient and lengthy New Source Review (NSR) Permitting 

processes, particularly permitting processes Process 

Uncertainty, particularly penmitting processes Section 404 Wetlands Permitting 

Process (wide variation in duration) 

5 
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Cumbersome Overlap, duplication or poor coordination Title V permitting decisions can be a 

Processes- between agencies, rules or permits basis for "re-litigating" decisions 

Particularly already made under NSR preOnerous construction permitting processes 

Permitting 

Processes Inconsistency, among agencies or between CAA permits- EPA often intervenes 

federal and state regulatory authorities, in in state decisions 

application or enforcement of rules 

Selection of and Permitting Issues 

The selection of priority regulatory and permitting issues in this section was based on the following criteria: 

The volume of responses citing a particular issue (see Table 2 below). 

The number of in-depth or broad scope responses that discussed the issue. 

Comments in the responses that highlighted an issue as of particular importance in tenms of 

regulatory burden or estimated costs; for example, NSRJPSD under the Clean Air Act was often 

singled out as the most significant regulatory and permitting burden, and the ozone NAAQS 

standard and crystalline silica exposure standard were both highlighted as resulting in very high 

costs. 

Issues that were discussed in sufficient detail to identify the nature of the burden and point toward 

potential solutions and actionable recommendations.10 

Some issues were included (or considered) because they have been longstanding challenges. 

' In response'lo the following question: "The most challenging regulations to comply with are due to_, the statement that most commonly 

represented the experience of manufacturers surveyed by NAM (41.7% of respcnses) was "regulatory agencies writing a final rule absent an 

adequate understanding of my business and my compliance challenges." (National Association of Manufacturers, "Holding US Back: 

Regulation of the U.S. Manufacturing Sector."). 

10 As an example, though there were numerous concerns expressed about recent changes to the Toxic Substances Control Act (TSCA), 

resulting from the Lautenberg Chemical Safety Act. the responses did not coalesce around a specific set of issues or recommendations. 

6 
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Table 2. Most Frequently Cited Regulatory & Permitting Issues that Impact Manufacturing 

Federal agency Issue area # Commenters 

1 EPA 

Clean Water Act (CWA): Wetlands Permits and Waters 42 ofThe United States (WOTUS) 

Clean Air Act (CAA): National Emissions Standards for 

2 EPA Hazardous Air Pollutants (NESHAP) and New Source 41 

Performance Standards (NSPS) 

3 EPA 

CAA: New Source Review and Prevention of Significant 40 Deterioration Permits (NSRIPSD) 

4 EPA CWA: National Pollutant Discharge Elimination System 31 (NPDES) Permits 

5 EPA CAA: Greenhouse Gas Requirements 29 

6 EPA CAA: National Ambient Air Quality Standards (NAAQS) 28 (general) 

7 EPA Resource Conservation and Recovery Act (RCRA) 18 

8 EPA 

Risk Management Programs and Reduced Risk and 19 Tech Review 

9 EPA Toxic Substances Control Act (TSCA) 18 

10 Department of Improve Tracking of Workforce Injuries and Illnesses 14 Labor (DOL) 

Departments of 

11 Interior and Endangered Species Act (ESA) 13 Commerce 

(DOl and DOC) 

12 Securities and Confiict Minerals Rule (Dodd-Frank) 12 

Exchange 

Commission 

(SEC) 

13 EPA and others National Environmental Policy Act (NEPA) 11 

7 
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14 EPA Regional Haze Requirements 10 

15 DOL Crystalline Silica Exposure 10 

16 DOL Overtime Rule 9 

17 EPA Comprehensive Environmental Response, 9 Compensation & Liability Act (CERCLA) 

18 EPA Spill Prevention, Controls, and Countermeasures 9 

Equal 

Employment 

19 Opportunity EE0-1 Form 7 

Commission 

(EEOC) 

Department of 

20 Health and Food Safety Modernization Act (FSMA) 5 

Human Services 

(HHS) 

Priority Regulatory and Issues 

This report focuses on regulatory and permitting issues that directly affect the construction, operation or 

expansion of manufacturing plants. While some of these regulatory issues primarily affect the 

manufacturing sector, others affect businesses across multiple sectors. Several issues are highlighted due 

to their indirect impacts on manufacturing, a perceived high level of adverse impact on economic growth, 

and other factors. The following are priority regulatory and permitting issues identified by respondents to 

the RFI. Refer to the appendix for a list of respondents that are referenced in this report. 

Clean Water Act: Wetland Permits and Waters of the United States (WOTUS) Rule 

As part of the Clean Water Act (CWA), the Environmental Protection Agency (EPA) regulates discharges of 

pollutants into "waters of the United States." In 2015, EPA promulgated the Clean Water Rule11, which was 

perceived by many respondents to have expanded the definition of waters of the United States- or at 

least added ambiguity to its definition -in ways that extend federal authority beyond the traditional limits. 

Different sources describe the expanded scope in different ways. For example, NAM states that it 

"extend(s) federal jurisdiction of CWA programs well beyond traditional navigable waters to ephemeral 

tributaries, flood plains, adjacent features and vaguely defined 'other waters' ... For manufacturers, the 

11 80 Fed. Reg. 37054 (June 29, 2015). 

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uncertainty of whether a pond, ditch or other low-lying or wet area near their property is now subject to 

federal CWA permitting requirements, can introduce new upfront costs, project delays and threats of 

litigation." (146-NAM) The U.S. Chamber of Commerce (CoC) states that it includes "ditches, canals, and 

even land that is dry most of the year, as long as water runs over that land sometime on its way to 

interstate waters." Many respondents expressed the view that the definition of "waters of the United States" 

set in the rule is too broad and that a narrower definition would be appropriate. (6-NFIB, 146-NAM) 

The rule was stayed by the 61h Circuit Court of Appeals on October 9, 2015. 12 On February 28, 2017, the 

President issued Executive Order 13778 directing the EPA and the Army Corps of Engineers (Corps or 

USAGE) to review the WOTUS rule. On March 6, 2017, the Corps and EPA published a notice announcing 

their intent to review the rule and seek to provide greater clarity concerning the definition of "waters of the 

United States."t3 On July 27, 2017, the EPA and the USAGE published a proposed rulemaking to repeal 

the 2015 Clean Water Rule and reinstate the regulations in place prior to its issuance.t4 As indicated in the 

proposed withdrawal, the agencies are implementing EO 13778 in two steps to provide as much certainty 

as possible as quickly as possible to the regulated community and the public during the development of the 

ultimate replacement rule. In Step 1, the agencies are taking action to maintain the legal status quo of the 

rule in the Code of Federal Regulations, by recodifying the regulation that was in place prior to issuance of 

the 2015 Clean Water Rule. Currently, Step 1 is being implemented under the U.S. Court of Appeals for the 

Sixth Circuit's stay of the rule. In Step 2, the agencies plan to propose a new definition that would replace 

the approach in the 2015 Clean Water Rule with one that reflects the principles in EO 13778. 

Clean Air Act: National Emissions Standards for Hazardous Air Pollutants and New Source Performance 

Standards 

The National Emissions Standards for Hazardous Air Pollutants (NESHAP) of the Clean Air Act (CAA) 

limits emissions levels for specific pollutants from a variety of specific sources and manufacturing 

processes. The Air Permitting Forum (APF) provides a summary of how NESHAPs work: 

The CAA Section 112 program covers the regulation of hazardous air pollutants (a defined list) for 

various source categories. Initially, these NESHAPs were established based on a review of 

currently employed air pollution control technology applied to existing and new sources (referred to 

as Maximum Achievable Control Technology, or MACT). Then, after eight years, the statute 

requires EPA to conduct residual risk and technology reviews. EPA assesses the risk remaining 

after application of MACT controls and determines if it is acceptable. If not acceptable, further 

controls must be applied. EPA is also required [every eight years] to evaluate if advances in control 

"Ohio v. United States Army Corps of Engineers (In re EPA & DOD Final Rule), 803 FJd 804 (6th Cir. Oct. 9, 2015). 

"82 FR 12532 (March 6, 2017) 

14 82 FR 34899 (July 27, 2017). 

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technologies have occurred since the MACT and to determine if their application to the source 

category is appropriate. (170-APF). 

Because the standards may apply to sources that are subject to another set of rules (the New Source 

Performance Standards (NSPS), discussed below) a number of respondents have suggested there are 

opportunities to consolidate and rationalize the requirements of these two sets of regulations. In addition, 

there are also a series of perceived 'unnecessary burdens" specifically related to NESHAPs. 

A number of respondents expressed concern about the residual risk and technology reviews (RTRs) as 

leading to unnecessary additional requirements with no (or limited) environmental beneftt. For example, 

NAM provided the following illustrative example for a sandblasting operation: 

For one manufacturer, this means having a dedicated employee climb on the roof of eight different 

manufacturing plants at the required interval (daily/weekly/monthly/quarterly) to do multiple 15-

minute observations on each roof, and perform visual observations of the on-site sandblasting 

booth at the required interval, only to document that zero visible emissions occurred at every 

observed location during every monitoring event. Since 2011, this manufacturer has made over 

700 visual observations consuming over 1,000 man-hours to comply with this regulation, despite 

having not once observed a "visible emission" at any of the plants. (146-NAM) 

Another example provided was secondary aluminum production, illustrating how regulations that emerged 

from an RTR led to rules that did not reflect real world operating conditions. This rule required "hooding" for 

new 'round top furnaces," which was impractical because they were incongruent with the charging method 

for this type of furnace which requires an overhead crane and lifting of the lid. (101-AA) 

One set of Maximum Achievable Control Technology (MACT) rulemakings for a particular source category 

(MACT for industrial and commercial boilers and process heaters) has received particular attention in 

recent literature, and in the RFI responses. The rulemakings for this source category have occurred over 

the last 20 years, and are being reviewed based on a 2016 court decision, which is causing the EPA to 

consider additional 'best performing boilers."15 The length and complexity of the rulemaking process has 

created uncertainty for manufacturers.16 In addition, specific requirements were identified by some 

respondents as burdensome, such as in the case of steel facilities: 

The requirement to test/tune/test each bumer of each applicable source is a burdensome exercise. 

At many steel making facilities there are multiple finishing lines with indirect heating furnaces that 

are comprised of hundreds of natural gas fired burners each below 5 MMBTU/hour. These units 

are considered cumulatively under the Boiler MACT and are therefore required to have annual 

tune-ups per40 CFR. § 63.7515(d). The annual tune-ups require excessive line outages and man 

'' See, htlps:llwww.epa.gov/boilers. 

16 Paul R. Noe, "Smarter Regulation for the American Manufacturing Economy." American Forest and Paper Association, September 14, 2016. 

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hours. The annual requirement for testing and tuning of the many small burners can range up to 

$100,000 for a company with the time, equipment and proper skills to conduct the tuning. For 

natural gas sources with burner sizes less than a certain threshold, reducing the frequency of these 

tune-ups to every five years would significantly reduce the cost burden. (92-AISI) 

Another MACT-related issue raised by respondents relates to the "once-in-always-in" policyH 

The Clean Air Act defines emissions limits for specific types of stationary sources. These New Source 

Performance Standards (NSPS) are specific to approximately 90 different industries/manufacturing 

processes. NSPS applies to "new, modified and reconstructed" facilities. As an example, there is a NSPS 

standard for volatile organic compounds (VOCs) for surface coating processes for large appliances.1B 

For NSPS, the specific regulatory burdens cited often were not the rules themselves, but the potential for 

overlap and redundancy with related rules, such as National Emissions Standards for Hazardous Air 

Pollutants (NESHAPS, discussed above). NAM and IECA specifically suggest there are opportunities to 

rationalize the NSPS and NESHAP requirements, reporting and recordkeeping. (146-NAM, 89-IECA) Both 

sets of rules limit emissions from specific manufacturing processes, suggesting that there may be 

opportunities to integrate the two standards. NAM gives a specific example of the opportunity to rationalize 

8 different regulations for different coatings processes. (146-NAM) 

More frequently mentioned were examples of enforcement reaching beyond explicit NSPS standards. (89-

IECA, 92-AISI, 112-SMA) A lSI gives the example of the EPA using enforcement actions to limit fugitive 

emissions of particulate matter in steel making facilities that are not explicitly delineated in the NSPS. (92-

AISI) 

Clean Air Act: New Source Review and Prevention of Significant Deterioration Permits 

The New Source Review (NSR) permitting program under the Clean Air Act was cited in many of the RFI 

responses as one of the most important opportunities to streamline permitting processes for manufacturers. 

An NSR "preconstruction" permit is required for new industrial facilities (and other new "major sources") or 

for "major modifications" of existing facilities. 19 The objectives of the program are to protect air quality by 

limiting increases in emissions and by ensuring that "advances in pollution control technology occur" as part 

of industrial expansion. The NSR program has different requirements depending on whether facilities are in 

"attainment" areas that are meeting National Ambient Air Quality Standards (NAAQS) for six specific 

"criteria" pollutants, or whether they are in non-attainment areas. Permits that are required to be obtained in 

17 Under the "once-in-always-in" policy, EPA requires that a major source, subject to the MACT technology standard, remains subject to that 

standard even if "the facility undertakes pollution prevention or installs control devices to reduce emissions below the major source applicability 

thresholds." (170-APF). That means a company is subject to a higher standard than is "justified' by their current emissions levels. Perversely, 

this creates a disincentive for companies to reduce emissions. (170-APF). 

16 New EPA NSPS for industrial surtace coating for large appliances. 1

' For more information on NSR permitting, see www.epa.gov/NSR. 

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attainment areas are known as Prevention of Significant Deterioration (PSD) permits. Table 3 below 

outlines the broad requirements for NSR and PSD permits: 

Table 3. Requirements for New Source Review 

and Prevention of Significant Deterioration Permits 

New Source Review Prevention of Significant Deterioration 

(Nonattainment Area) (Attainment Area) 

1. Installation of the Lowest Achievable 1. Installation of the Best Available Control 

Emission Rate or LAER ("meaning that the Technology or BACT (similar to LAER, but 

plant must install state-of-the-art pollution sometimes less stringent, and assessed on a casecontrols in order to match or exceed the by-case basis) ( 48-AF) 

emission rate achieved by the lowest 

emitting similar facility in the country") (48-

AF) 

2. Emissions offsets (reductions) from other 2. An air impact analysis or modeling that 

plants in the same area that yield a net air demonstrates that the increase in emissions: 1) 

quality benefit for the region 'will not result in changes in ambient air quality that 

would cause the area to exceed NAAQS for any 

pollutant, and 2) even if projected emissions will 

not violate NAAQS, they will not result in an 

increase in ambient concentrations of any pollutant 

that exceeds the allowable PSD 'increments' set by 

the CAA" 

3. Alternative Sites Analysis 3. An additional impacts analysis (which 'assesses 

the impacts of air, ground and water pollution on 

soils, vegetation, and visibility caused by any 

increase in emissions of any regulated pollutant" 

from the source)20 

4. Opportunities for public comment 4. Opportunities for public comment 

Sources: www.epa.gov/nsr, 48-AF, 92-AISI, 136-AFPM, EPA, Webinar Slides: Revisions to the 

Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations 

and Establishment of a GHG Significant Emission Rate (SER): Proposed Rule, September 20, 201521 

''For more information on NSR permitting, see www.epa.gov/NSR. 

"81 FR 68110 (October 3, 2016). 

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The NSRIPSD permitting processes are perceived by RFI respondents to be unnecessarily cumbersome 

and lengthy. The time required to obtain a preconstruction permit, once an application is received, can 

range from 9 months to as much as 2-3 years. (48-AF, 170-APF) This duration does not include the months 

(or even years) required to prepare the application, nor does it include potential delays that can lengthen 

the process or make its timing uncertain, such as the need to revise air quality modeling when a NAAQS 

standard is changed, or the possibility of an appeal or review by the EPA of a state decision to issue a 

permit. (170-APF, 10-PCBI, 89-IECA) 

Respondents indicated the costs to prepare an application and construct air quality and dispersion models 

are significant, not to mention the costs of emissions offsets and what is sometimes perceived as "overinvestment' in pollution control equipment due to the conservative assumptions built into these models. The 

result is that manufacturers avoid making investments to modernize facilities, improve processes or 

increase quality for fear of triggering an NSRIPSD requirement. (146-NAM, 10-PCBI) 

A number of recommendations have been put forward to address various issues that arise under 

NSRIPSD: 

• Turnaround Time. One proposal is to enforce reasonable turnaround times. (48-AF) According to a 

recent paper,22 under the CAA, "EPA and other permitting agencies are required to either grant or 

deny an NSR permit within one year of receiving a permit application, but there is no practical way 

to enforce this deadline." In addition to setting firm deadlines, other suggestions include: 

o Limiting challenges or appeals, including limiting the ability of the EPA to review or reject 

the decision of a state permitting authority. (89-IECA, 170-APF, 10-PCBI} 

o Allowing some construction activities to commence that do not generate emissions, prior to 

receiving a permit. (146-NAM) 

• Aggregation. There are also a set of rules regarding the "aggregation" of emissions (within a 

facility, over time within a facility, or across locations) that affect whether the need for a NSRIPSD 

permit process is triggered. A number of respondents made suggestions or encouraged 

approaches that allow flexibility for sources to aggregate emissions and thus demonstrate that total 

emissions are not increasing sufficiently to trigger an NSRIPSD process. (In some cases this would 

involve clarifying rules or "solidifying' past reforms already proposed.) These recommendations 

include: 

o Plant-Wide Applicability Limitations (PALs)- EPA could promote and facilitate "PlantWide Applicability Limitations (basically emissions limits that apply facility-wide) through a 

22M Fraas, John D. Graham, and Jeff Holmstead, "EPA's New Source Review Program: Tune for Reform? " Environmental Law Reporter, 1-

2017. 

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permitting process, allowing such a facility to change, modify and upgrade equipment and 

operations and add new equipment without triggering major modification NSR review, 

provided the changes do not result in exceeding the established PAL emissions limits." 

(92-AISI quote, also 170-APF) 

o Units that precede or follow the unit being modified should not be considered as part of 

emissions increases that might trigger NSR. (170-APF, 136-AFPM) 

o Clarifying the rules around definition of a project, and whether separate activities can be 

grouped together into a project for purposes of triggering NSRJPSD. (170-APF, 136-AFPM, 

146-NAM) 

• Rules that Avoid Triggering NSR. There were also recommendations relating to the rules that 

trigger NSR, such as: 

o Revisiting and expanding the definition of activities that are defined as 'routine 

maintenance, repair and replacement," which are exempted from NSRIPSD requirements. 

(92-AISI, 170-APF) 

o Using actual emission increases versus theoretical or maximum 'potential to emit" in 

calculations. (1 0-PCBI, 136-AFPM) 

• Modeling. Numerous respondents identified the need to avoid delays and re-work in the application 

and air quality modeling process. (Note that a more general discussion of NAAQS and modeling is 

found in the section below.) Recommendations include: 

o Introducing guidance on modeling at the same time as NAAQS standards are revised, so 

there is clarity on modeling required as part of an NSR application. (92-AISI, 48-AF) 

o "Grandfathering" NSR applications that were submitted, but not yet approved, prior to a 

change to NAAQS standards, so companies do not have to revise the applications to 

conform to the new standards. (92-AISI, 48-AF) 

• BACT and LAER determinations. Several respondents offered suggestions about how to improve 

the process of determining the required pollution control technology, which is perceived to be 

onerous and susceptible to delays: 

o PSD BACT determination should be based on proven, domestic technology that is in the 

same "industrial category' as the applicant and was in existence when the application was 

submitted (92-AISI, 10-PCBI) and should consider alternatives to the "top down' BACT 

analysis process. (170-APF) 

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• Emissions Credits or Offsets. Respondents also raised concerns that there can be challenges in 

obtaining emissions credits in non-attainment areas, and when they are available they can be very 

expensive. In one example, a relatively small new facility in Houston (emitting more than 100 tpy of 

Volatile Organic Compounds or N02) may need to spend between $32 million and $52 million for 

emissions offsets. (48-AF) Recommendations by respondents include: 

o Increased flexibility for buying offsets from outside the local areas where a new facility is 

being established. (48-AF) 

o Emission fees versus credits (which would require a statutory change). (48-AF) A recent 

paper on EPA's NSR program stated: "We propose a narrow statutory reform that could 

address these issues while still obtaining most or perhaps even more of the environmental 

benefits of the current program: allow permit applicants to pay emissions fees in lieu of 

meeting the current offset requirements, and require the state or local environmental 

agency to use these fees to pay for or subsidize emissions reductions that the agency 

believes will do the most good in terms of reducing environmental risks."23 (48-AF) 

The other major permit required by the CAA (beyond NSR!PSD) is the Title V operating permit for major 

(and some minor) sources, which incorporates all of the federal and state air pollution control requirements 

in one place. (170-APF). The operating permit must be renewed every 5 years. 

Industry respondents suggested that it has become costly to obtain, maintain and renew operating permits. 

(170-APF) A lSI reported "varied timelines for completing the Title V review and approval process, 

depending on the state regulatory agency and EPA Regional Office, taking up to three years to receive the 

final permit and costs of several million dollars for each operating permit needed.' (92-AISI) And according 

to the Air Permitting Forum, "the cost of the program today is far more than was ever anticipated ... given the 

enormous costs of the program, it is incumbent on the government to take whatever steps it can to 

streamline permitting and minimize costs." (170-APF) 

Concerns were also raised that even when an NSRIPSD preconstruction permit already has been obtained, 

the Title V permit process provides another opportunity for NGOs or others to mount a legal challenge "on 

the same grounds that have already been adjudicated." (170-APF) Moreover, "Title V petitions often sit in a 

long queue at EPA, and then can end up back in court-duplicating costs for industry to defend its 

expansive and long-evaluated permits." (170-APF) 

A related problem is the concem that the operating penni!, which is intended to consolidate various 

regulatory requirements, is being used (e.g., by states) to add additional requirements or impede flexibility 

in meeting other requirements imposed by the CAA (e.g., such as using the permit language to limit the 

options for an appliance surface coating operation in meeting MACT standards for hazardous air pollutants 

23Art Fraas, John D. Graham, and Jeff Holmstead, "EPA's New Source Review Program: Time for Reform?" Environmental Law Reporter, 1~ 

2017. 

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(HAPs). which otherwise would be able to meet requirements by changing materials or adopting controls). 

(170-APF) 

In addition to an overall desire to streamline the approval process, specific recommendations include: 

eliminating the ability of EPA or other stakeholders to 're-litigate' preconstruction NSRIPSD permit 

decisions during the Title V permitting process (170-APF); extending the term of the permit from 5 to 10 

years (170-APF); and citing other requirements in the permit rather than recreating or summarizing those 

requirements in their entirety in the permit itself. (170-APF) 

Historically, the CAA has exempted Start-up, Shutdown and Malfunctions (SSM) periods from the 

emissions restrictions that apply under normal operating periods. However, in response to recent court 

decisions, the EPA has reversed course, and proposed new rules (in 2016) to eliminate these exemptions 

and eliminate the 'affirmative defense' provision for emergencies. Numerous industry respondents have 

urged that the SSM exemptions be restored (89-IECA, 170-APF, 92-AISI): 

'Unless EPA acts quickly, every manufacturing company in the country operating under a Title V 

air permit could be subjected to unnecessary citizen suits and potential civil penalties as they shut 

down and start-up their equipment to conduct maintenance activities and other planned and 

unplanned outages.' (89-IECA) 

It has also been suggested that other alternative approaches could be explored, such as developing a more 

"judicially sound affirmative defense concept' or "re-promulgating technology based emissions standards 

sufficient to cover emissions associated with SSM events.' (101-AA) 

Clean Water Act: National Pollutant Discharge Elimination System Permits 

Section 402 of the CWA- known as a National Pollutant Discharge Elimination System (NPDES) 

requires a permit to discharge pollutants from a "point source" into 'waters of the United States." 'The 

permit will contain limits on what you can discharge, monitoring and reporting requirements, and other 

provisions to ensure that the discharge does not hurt water quality or people's health."24 An NPDES Stormwater program also requires a permit for some storm-water discharges, which are not considered point 

sources. Also under the CWA, a section 404 permit may be required for the discharge of dredge or fill 

material into 'waters of the United States.' Section 404 is managed by the EPA and US Army Corps of 

Engineers. 

A primary concern expressed by RFI respondents was the complexity of these permitting processes, and 

the time required to obtain a permit. According to AISI, "[t]he 404 permitting process is currently one of the 

most ill-defined processes for a regulated party to understand and thus to predict permit timelines.' (92-

AISI). Respondents reported that Section 404 permits can take 1-4 years or more to obtain and NPDES 

permits require 6 months or more. (92-AISI) In reference to wetlands (Section 404) permitting, SMA stated 

"See www.epa.gov/npdes for more information on the Section 404 permitting process, 

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that "USACE [US Army Corps of Engineers] permitting processes are slow, antiquated and expensive." 

(112-SMA) And regarding NPDES, the Aluminum Association's assessment is that the "antiquated 

permitting timeline embedded in these regulations costs business money and lost opportunities for grow1h." 

(101-AA) 

Some of this long permitting cycle is driven by the complexity of the law and the permitting process, which 

requires permits for industrial discharges from point sources, often based on effluent guidelines for specific 

industrial processes (which are sometimes complicated by Total Maximum Daily Load limits on the amount 

of "pollutant a waterbody can receive'); a separate permit process for discharges that go into publicly 

owned treatment works (POTWs), for storm water, and for wetlands; a set of requirements for cooling 

intake water; and significant operational proscriptions and recordkeepinglreporting. (See 

www.epa.gov/npdes and 92-AISI; 112-SMA; 136-AFPM; 101-AA) 

The recommendations by respondents generally revolve around streamlining the process, eliminating 

duplicative requirements, making the steps to obtain a permit more defined (with fewer open-ended steps), 

and shortening the process timeline. (92-AISI, 101-AA, 76-Boeing) 

Clean Air Act: Greenhouse Gas Requirements 

Greenhouse Gas (GHG) emissions are now regulated under the CAA, using PSD and Title V permitting 

processes25 The objective was to introduce "GHG emissions thresholds that define when permits under 

these permitting programs were required" for new or modified sources.26 Litigation has caused a revision of 

the rules, which is still in progress.27 The primary result of the decision was that the EPA "may not treat 

GHGs as an air pollutant for the specific purpose of determining whether a source is required to obtain a 

PSD or Title V permit."28 In other words, a "BACT analysis for GHGs" is only required in cases "where 

another air pollutant triggers a review" and the requirement to obtain a PSD or Title V permit. (136-AFPM) 

A revised rule has been proposed, and final comments were due in December 2016. 

Nevertheless, for major sources that require Title V and PSD permits for another pollutant, EPA can apply 

BACT requirements to GHGs above a specific threshold, which has been proposed at 75,000 tons per year 

(tpy) C02e Significant Emission Rate (SER). The court decision referred to above also requires a 

justification for this threshold level. There is concern among a number of RFI respondents that this 

threshold level of GHG emissions is too low, and that the benefit in terms of a reduction in GHG emissions 

"The EPA's original Greenhouse Gas Regulations consisted of the "Endangerment Finding" (74 FR 66523 (2009)), the "Triggenng Rule" (Z!i 

FR 75004 (2010)), the 'Tailpipe Rule" (75 FR 25324 (2010)), and the "Tailoring Rule" (75 FR 31514 (2010)). 

"EPA "Revisions to the Prevention of Significant Deterioration (PSD) and Tille V Greenhouse Gas (GHG) Permitting Regulations and 

Establishment of a GHG Significant Emission Rate fSERl: Proposed Rule: Webinar, Sept. 20, 2016. 

"Utility Air Regulatory Group v. EPA; Coalition for Responsible Regulation v. EPA. 

"EPA "Revisions to the Prevention ot Significant Detenoration (PSDl and Title V Greenhouse Gas fGHG) Permitting Regulations and 

Establishment of a GHG Significant Emission Rate (SER): Proposed Rule: Webinar, Sept. 20, 2016. 

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would not justify the additional regulatory burden. (89-IECA, 136-AFPM) Respondents, therefore, 

recommend the EPA prioritize an expedited and judicious review of SER thresholds for GHGs. 

Clean Air Act: National Ambient Air Quality Standards 

The EPA establishes National Ambient Air Quality Standards (NAAQS) for six "criteria" air pollutants 

(carbon monoxide, ozone, lead, nitrogen dioxide, particulate matter, and sulfur dioxide). Regions are 

designated as "attainment" areas (which meet the NAAQS standards), non-attainment regions, or 

unclassified. Non-attainment regions are considerably more restricted in allowable emissions, thus limiting 

the potential for new manufacturing plants and plant expansions. NAAQS standards have been continually 

ratcheted downward; the 2015 ozone regulation established a standard of 70 parts per billion (ppb), which 

revised a 2008 standard of 75 ppb that has not yet been fully implemented29 (89-IECA, 136-AFPM) At 70 

ppb, respondents raised concerns that the level is approaching "background" levels of ozone. (48-AF,146-

NAM, 112-SMA) Respondents also raised concerns that the pace at which the standard has been revised 

has not allowed sufficient time for implementation, and is further complicated by measurement and (again) 

air quality modeling issues- in particular accounting for ozone transported from international sources. 

(112-SMA,107-COC) As noted in a recent paper: 

Recent research has found that stratospheric intrusions and long-range transport-particularly in 

western states-have resulted in daily maximum eight-hour ozone levels of 70 ppb or more. With 

the ozone NAAQS at or below background, sources will find it impossible to show that they will not 

"contribute to" a violation of the standard. (48-AF) 

Some observers recommended that implementation be delayed. 30 

Because of this increasingly restrictive standard, respondents specifically raised concerns that the current 

NAAQS standard for ozone is not practicable to implement, will shift numerous areas into a non-attainment 

designation, and will severely restrict the ability of manufacturing companies to establish new facilities or 

expand existing facilities in those regions. (136-AFPM, 112-SMA, 89-IECA) 

Because of this narrow margin, numerous respondents identified the need for EPA to improve air quality 

and dispersion models. For example, one respondent stated: 

In conducting an analysis for the PSD program, facilities must use EPA-approved models to 

demonstrate that a project will not cause a violation of a NAAQS standard. The models' overly 

conservative algorithms and assumptions, however, can create a modeling result that rarely 

represents and often significantly overestimates monitored concentrations around the facility. 

"A NAM-NERA 2014 report assessed the impact of a more stringent 60ppb standard that was contemplated at the time, and the analysis 

suggested the economic impact would be enormous: " ... the potential emissions control costs would reduce U.S. Gross Domestic Product 

(GOP) by $270 billion per year on average over the period from 2017 through 2040 ... The potential labor market impacts represent an average 

annual loss of 2.9 million job-equivalents." (NERA Economic Consulting, "Assessing Economic Impacts of a Stricter National Ambient Air 

Quality Standard for Ozone," Prepared for NAM, July 2014). In contrast, the EPA estimated costs of $560M for what appears to be the final rule 

of70ppb. (OMB, "2016 Draft Report'). 

30 146-NAM, Letter to National Economic Council, regarding regulations of concern, Business Roundtable, February 22, 2017. 

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Reliance on modeling that over-predicts ambient concentrations can result in additional 

unwarranted costs by causing facilities to install beyond-BACT pollution control equipment, even 

though the assumptions used in the models and the predicted concentrations are not 

representative of real-world conditions. (170-APF) 

Some of the specific suggestions to improve the approach involved re-examining assumptions about 

background concentration levels, the treatment of fugitive emissions, use of actual emissions rather than 

theoretical or maximum operating rates, employing probabilistic models, and reconsidering inappropriate 

"ambient air receptor' locations where individuals will not generally be exposed to emissions. (89-IECA, 92-

AISI, 170-APF, 112-SMA, 136-AFPM) 

Others recommended that changing the timetable for mandatory NAAQS reviews from every five years to 

every ten years would allow more time to meet the previous standard. (107-COC, 136-AFPM, 10 PA) In 

addition, the CoC notes that these "five-year deadlines are regularly exceeded by the EPA and inevitably 

result in 'sue-and-settle' agreements." Five-year review cycles have the potential to result in over 

regulation and constant changes requiring capital outlays from the private sector. Implementing the 

respondent's recommendation would require Congress to update the NAAQS review schedule to reflect a 

10-year cycle. This update would allow for complete realization of environmental improvements, and would 

bring greater certainty to regulated operators. 

Another frequent recommendation raised by respondents is to re-examine and clarify how to account for 

international and long-range transport of ozone, and for exceptional events. For example, the EPA has a 

policy which would allow it to "disregard exceedances of a NAAQS caused by certain types of exceptional 

events," such as stratospheric intrusions. However, it was suggested that in practice it is difficult to obtain 

EPA "recognition" of exceptional events in an NSR application. (48-AF) In light of this phenomenon, where 

meteorological conditions play a role in transporting extra-jurisdictional emissions, EPA should exclude 

those emissions from regulatory consideration, classifying them as "exceptional events." Respondents 

recommend that EPA employ all tools available to discount for "background" conditions and allow the 

maximum degree of flexibility afforded by statute. 

Resource Conservation and Recoverv Act 

The Resource Conservation and Recovery Act (RCRA) is a set of laws, regulations and policies that govern 

management and cleanup of solid, liquid, and gaseous hazardous waste. 31 Manufacturers are affected by 

RCRA because of the generation of waste streams in their factories. An issue identified by several 

respondents is the inappropriate classification of certain waste streams as hazardous, which impose 

burdensome additional requirements, and have the effect of discouraging recycling, reuse or reclamation. 

(146-NAM) For example, A lSI has proposed that bag house dust from electric arc furnaces (EAFs) be 

delisted as hazardous, which would open up additional recycling or reuse opportunities (without always 

employing an RCRA-permitted recycling operator). SMA similarly suggested that by-products from EAFs 

31 For more information, see https:i/www.epa gov/rcra, 

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are sometimes classified as hazardous, resulting in more complex and burdensome management 

requirements, which again undermine the goal of recycling. (112-SMA) In 2015, EPA has added a 

restrictive criterion for "legitimacy' which results in unnecessary treatment and disposal of material that 

could be reused or recycled for other purposes.32 Respondents recommend updating the rule to allow for 

more beneficial uses of substances where reuse or recycling can be justified by industry. Additionally, 

another respondent proposed an aggressive approach to delisting waste as "hazardous,' where 

appropriate, which would reduce regulatory burden. (76-Boeing) 

On November 28, 2016, the EPA published the Hazardous Waste Generators Improvement Rule.33 

According to 89-IECA it "causes waste generators who violate even one 'Condition for Exemption' from 

permitting to be treated as [full-fledged] waste treatment, storage, and disposal facilities requiring RCRA 

permits. Violation of a single minor condition can, therefore, mean that an otherwise exempt facility must 

obtain a RCRA permit and can be cited for violations of numerous regulations and permit conditions" (136-

AFPM) or be subject to more onerous regulations. (89-IECA) It is recommended the rule be revised to allow 

some leeway on conditions of exemption and associated violations. 

Risk Management Programs 

Section 112(r) of the Clean Air Act addresses the prevention of accidental releases of hazardous 

substances. Respondents raised concerns that EPA's recently issued Risk Management Plan (RMP) rule 

(40 CFR, Part 68, finalized in 2017), which would add unnecessary or unreasonable additional burden for 

affected facilities. 

For example, there is significant concern about duplication and conflicting requirements under the rule with 

Occupational Safety and Health Administration (OSHA) Process Safety Management standard. (136-

AFPM, 43-Mosaic, 133-PIA) In addition, several elements of the new requirements were perceived as 

unnecessary or inflexible. One such area is the requirement for third party audits in certain circumstances 

(such as chemical release or instance of non-compliance). (136-AFPM, 109-Valero) One respondent 

suggested appropriately trained internal staff could perform audits, and also suggested the qualifications for 

third party auditors outlined in the regulations were too restrictive. (158-CKRC) An additional requirement 

highlighted was the need for a "resource-intensive inherently safer technology analysis' that according to 

one respondent "provides little value after a facility is already built" (136-AFPM), and which another 

respondent said will "increase compliance costs without improving safety." (109-Valero) Finally, several 

respondents expressed concern about reporting requirements that would release sensitive information that 

could be used for lawsuits or potentially even terrorist attacks. (146-NAM, 109-Valero, 136-AFPM) Legal 

action has been taken seeking reconsideration of the rule. (136-AFPM) On March 13,2017, the EPA 

convened a proceeding to reconsider RMP Rule.34 On June 14, 2017, the EPA published a final rule to 

"80 Fed. Reg. 1693-1814 (Jan. 13, 2015), revising 40 CFR. Parts 260 & 261. 

"81 FR 85732 (November 28, 2016). 

"82 Fed. Reg. 13968 (March 16, 2017). 

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further delay the effective date of the RMP Rule for 20 months until February 19, 2019, to allow adequate 

time for the reconsideration.35 

Toxic Substances Control Act 

The Toxic Substances Control Act of 1976 (TSCA) provides EPA with authority to require reporting, recordkeeping and testing requirements, and to impose restrictions relating to chemical substances and/or 

mixtures. Certain substances are generally excluded from TSCA, including, among others, food, drugs, 

cosmetics and pesticides. The types of chemicals regulated by TSCA fall into existing (chemicals on the 

TSCA Inventory) and new, which is an important distinction as TSCA regulates each category differently. 

For new chemicals, manufacturers must submit a pre-manufacturing notification to EPA prior to 

manufacturing or importing new chemicals for commerce. TSCA also specifically addresses the production, 

importation, use, and disposal of specific chemicals including polychlorinated biphenyls (PCBs), asbestos, 

radon and lead-based paint. The most common issue with TSCA expressed by the respondents was the 

restrictions imposed on manufacturing and use of chemicals that have the potential to drastically and 

unnecessarily impact profit, productivity, competition and jobs. (37 -ILMA, 39-IPC, 51-NSSGA, 56-CPA, 

101-AA, 115-HSIA, 116-NAFO, 141-ACC, 151-PESA, 155-PMPA) It should be noted, however, !halon 

June 22, 2016, the Frank R. Lauten berg Chemical Safety for the 21st Century Act, which amended TSCA, 

was signed into law, addressing some of the shortcomings in the original law and adding a mandatory duty 

to evaluate chemicals and a new risk-based safety standard. 

Improve Tracking of Workforce Injuries and Illnesses 

In May 2016, the Occupational Safety and Health Administration (OSHA) published its final rule to 'Improve 

Tracking of Workplace Injuries and lllnesses.'36 However, manufacturers are concerned that this rule 

requires them to submit electronic records of workplace injuries and illnesses, which OSHA is planning to 

post on a public website. (92-AISI, 146-NAM, 107-COC) RFI respondents have voiced two objections to 

making the data publicly available: 1) the information may be used by union organizing campaigns, or as 

the basis of litigation on safety issues; 2) privacy concerns exist, as there may be identifying information 

included in the reporting that could expose sensitive, proprietary information. (92-AISI, 146-NAM, 107-

COC) Also, there are requirements for establishing a reasonable system for workers to report injury or 

illness, along with provisions that prevent employers from retaliating against whistleblowers or in other 

ways discouraging injury or illness reporting. 

Guidance issued on how to comply with the rules included language that suggested some safety 

performance incentives and drug testing programs might be construed as in violation of the rule, as they 

might deter reporting (to improve safety performance measures or to avoid post-accident drug testing). 

"82 Fed. Reg. 27133 (June 14, 2017). 

"81 FR 29623 (May 12, 2016). 

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(107-COC; 92-AISI; 39-IPC) Respondents would like the plan to post safety data online to be reconsidered, 

and to clarify the guidance so that it does not undermine safety incentive and drug testing programs. 

Endangered Species Act 

Specific concerns raised relating to the Endangered Species Act (ESA) fall primarily into three categories. 

First, federal agencies issuing permits must consult with the U.S. Fish and Wildlife Service when 

construction may affect an endangered or threatened species; this consultation adds considerably to permit 

time and complexity. (51-NSSGA, 84-Ameren, 114-AGC, 136-AFPM) Second, due to high volume, ESA 

rules such as the 2016 Critical Habitat Designations, have become "unreasonable." (86-IPAA, 114-AGC, 

144-AFPA, 146-NAM, 152-AWC) Finally, concerns were raised that the ESA is being exploited by project 

opponents as a means of blocking permits. (75-SLMA, 107 -COC, 126-API) 

Conflict Minerals and Dodd-Frank 

Section 1502 of the Dodd-Frank AcP7 mandates that the U.S. Securities and Exchange Commission (SEC) 

create rules38 that require public companies that use conflict minerals (tantalum, tin, gold or tungsten) in the 

manufacture of their products to "undertake 'due diligence' on the source and chain of custody of its conflict 

minerals and file a Conflict Minerals Report" and publicly disclose this information. 39 The concern is that the 

mineral may have come from or near the Democratic Republic of the Congo and its use, therefore, is 

contributing to a humanitarian crisis. A significant issue is that the due diligence requirement is directed 

back on to suppliers, which are often small to medium sized manufacturers who cannot easily comply with 

this burden. (53-ACMA, 120-NTMA/PMA, 137-MEMA, 146-NAM) One respondent noted that both the 

Department of Commerce and the SEC stated they lacked the expertise in this type of back-to-the-mine-oforigin investigation, and given this, asks how small firms can be asked to do these types of investigations. 

(120-NTMA/PMA) 

According to NAM, the "SEC estimates that it will take the average manufacturer 480 hours annually to 

comply with this regulation."40 Another association stated, "a large Tier 1 supplier estimated that their 

expenditures have totaled about $3 million since the annual reporting requirements took effect. These costs 

include tracking the supply chains and processes of over 7,000 lower tier suppliers, evaluating the minerals 

tracking efforts of all suppliers, and categorizing the likelihood that a supplier's products contain conflict 

minerals. Additional costs are incurred because all findings from the company's suppliers must be manually 

entered into a database and categorized so that the information provided may be utilized by the Tier 1 

37 PL 111-203, Dodd-Frank Wall Street Reform and Consumer Protection Act, July 21, 2010. 

''17 CFR 240 and 249b. 

'' SEC Fact Sheet, https:llwww.sec.gov/opa/Article/2012-2012-163htm---related-materials.html. 

40 National Association of Manufacturers, "Holding US Back: Regulation of the U.S. Manufacturing Sector," prepared by Pareto Policy 

Solutions, LLC. 

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supplier in preparing filings."(137-MEMA) Many respondents suggested that the rule be suspended. (14-

Chromaflo, 39-IPC, 53-ACMA, 71-Whirlpool, 107-COC, 120-NTMA/PMA, 137-MEMA; 146-NAM) 

A second SEC issue was the CEO pay ratio disclosure provision required by Section 953(b) of the DoddFrank Act. This provision calls for public companies to disclose the ratio of employees' median pay to the 

compensation of a company's chief executive officer. The SEC finalized a rule for this provision in August 

2015, and it becomes effective in 2018. NAM notes that this ratio is a "false and overly simplistic" metric of 

company compensation practices and it is burdensome due to the costs associated with calculating median 

pay. (146-NAM) The U.S. Chamber echoes those concerns and notes that some municipalities are 

"enacting a new tax based upon this ratio." (107 -COG) NAM asks that the SEC reconsider the rule entirely. 

National Environmental Policy Act 

The National Environmental Policy Act (NEPA) requires that federal agencies consider significant 

environmental impacts in their decision-making, and established the President's Council on Environmental 

Quality (CEQ). Federal law requires permits for many kinds of industrial and commercial activity, and the 

issuance of such permits often triggers a requirement for NEPA analysis. This process can quickly become 

extremely lengthy and costly. For example, according to NAM: 

It (the NEPA) is often the largest. costliest, most time-consuming regulatory hurdle that project 

sponsors, developers, construction managers and engineers face before they can build. Philip 

Howard's 2015 report, "Two Years, Not Ten Years: Redefining Agency Approvals" explains that 

public project costs are increased by more [than] $3.7 trillion because of red tape. It is also a 

common target for abuse, as there are countless ways for federal and state agencies and external 

actors to throw a wrench in the process and delay completion of the review. The longer the delay, 

the more likely the developer walks away. Project opponents do not often need a [court] judgment 

on the merits of NEPA to win; the delay can be enough ... A 2014 GAO report made several 

startling findings with respect to the administration of NEPA. [GAO found that the] Administration 

had no idea how long a typical NEPA review takes. GAO's best guess was an analysis by the 

National Association of Environmental Professionals (NAEP), which estimates that the average 

environmental impact statement (EIS) under NEPA takes 4.6 years. the highest it has ever been. 

NAEP also estimated that the time to complete an EIS increased by 34.2 days each year from 

2000 to 2012. (146-NAM) 

Another respondent wrote that. with respect to individual permits under CWA Section 404 for dredge and fill 

activities, this "process can take 4 years even if a full Environmental Impact Analysis is not required." (43-

Mosaic) Other respondents also discussed the increased costs and significant manufacturing and 

construction delays as a result of NEPA. (10-PCBI, 42-Novelis, 43-Mosaic, 46-ATT. 71-Whirlpool, 83-TM, 

86-IPAA, 96-NMA, 101-AA, 114-AGC, 115-HSIA, 125-BP, 136-AFPM, 146-NAM, 159-VI, 172-VI) 

Regional Haze Requirements 

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In 1999, the EPA announced a major effort to improve air quality in national parks and wilderness areas. 

The Regional Haze Rule (RHR) calls on states, in coordination with the EPA, the National Park Service, 

U.S. Fish and Wildlife Service, the U.S. Forest Service, and other interested parties, to develop and 

implement air quality protection plans to reduce the pollution that causes visibility impairment. In 156 

national parks and wilderness areas such as the Grand Canyon, Yosemite, the Great Smoky Mountains 

and Shenandoah National Park. 

One of the most significant concerns with the RHR is that the requirement to reach "natural conditions" in 

visibility (defined as visibility in pre-industrial America) in the National Parks by 2064 may be unreasonable 

given the global nature of air quality and current operation and needs of our society. (148-TSGT A; see also 

69-Domtar, 86-IPAA, 89-IECA, 100-ACA, 101-AA, 102-Renfro, 123-3M, 125-BP, 170-APF) To reach 

natural conditions, the EPA has been implementing restrictions in NOx emissions and emissions from 

electric generators, and forcing states to impose high cost, low benefit pollution controls. In doing this 

concerns were raised that EPA is interfering with implementation of this rule, for which States have the 

primary role in determining how best to make emissions reductions and define their own 'glide-path' to 

achieving the goal. 

Crystalline Silica Standard 

Silica can be found in a number of manufacturing operations, including foundries, glass making, paint 

manufacturing, porcelain manufacturing, and brick manufacturing. (107-COC) In 2016, an OSHA rule was 

finalized41 which cut in half the permissible exposure to crystalline silica (for general industry and maritime) 

from 100 to 50 micrograms per cubic meter.42 Compliance is required within 2 years after the effective date 

(2018). 

Industry respondents suggest the standard is simply too stringent and will be difficult, costly or impossible 

with which to comply. According to NAM the rule requires "extensive and costly engineering 

controls ... exposure monitoring, medical surveillance, work area restrictions, clean rooms and 

recordkeeping" (146-NAM) Respondents also state that the standard "could force manufacturers to shut 

their doors' or "could potentially cause several types of manufacturing to leave the United States." (146-

NAM, 107-COC) The U.S. Chamber of Commerce indicates that the previous standard was highly effective, 

reducing deaths from exposure to silica by over 93% since 1968, and this new standard is being challenged 

in court (to determine if OSHA demonstrated "significant risk,' and whether compliance with the rule "is 

technologically and economically feasible"- a "statutory requirement for an OSHA standard)." (1 07 -COC) 

Respondents have suggested that the rule should be rescinded or reviewed. 43 (146-NAM, 107-COC) 

"81 FR 162885 (March 25, 2016). 

"Paul R. Noe, "Smarter Regulation for the American Manufacturing Economy," American Forest and Paper Association, September 14, 2016. 

'' 146-NAM, 107-CoC, NFIB, Problem Regulations, January 24, 2017. 

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Department of Labor Overtime Rule 

The new overtime rule raises the salary level required for exemption from overtime pay of salaried white 

collar employees from $23,660 to $47,476.44 A number of respondents suggested that the salary level for 

this exemption was too high, the rule exceeded statutory authority, and the automatic escalation of this 

salary threshold over time would be too rapid. (146-NAM, 6-NFIB, 39-IPC, 107-COC, 120-NTMA/PMA) The 

rule has been preliminarily enjoined by a district court, and the federal government has appealed this 

decision .45 

Comprehensive Environmental Response. Compensation, and Liability Act 

The Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA) major 

emphasis is on the cleanup of inactive hazardous waste sites. CERCLA gives the President authority to 

clean up or ensure the cleanup of these sites through 'removal" and/or "remedial" actions, generally 

referred to as 'response" actions, to address threats to human health and environment. CERCLA provides 

for cost recovery from potentially responsible parties, including current and former owners and operators of 

the facility, along with parties that arranged for or transported hazardous substances to the facility. 

Agencies provide oversight when the cleanup is pursuant to an agency order or a federal consent decree. 

The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) outlines CERCLA's 

implementing regulations. Agencies follow the procedures and standards detailed in the NCP when 

remediating these sites. 

RFI respondents raise concerns that CERCLA requirements can be extremely expensive and duplicative 

with other regulations. (84-Ameren, 92-AISI, 96-NMA, 101-AA, 110-Freeport, 111-GAC, 131-NMMA, 159-

VI, 160-TCC) As a separate point, one respondent further stated, "under this policy, EPA routinely requires 

cooperating private parties to pay for duplicative and unnecessary expenses that the Agency incurs-in 

addition to the substantial expenditures the private parties are already undertaking in order to remediate the 

site. EPA's duplicative oversight activities not only increase costs, but also impede the pace of remediation 

by adding layers of unnecessary review. In 2015, EPA billed private parties $106.4 million for agency 

oversight-a substantial amount of overhead costs and resources that are better spent directly on cleanup 

activities."46 

Spill Prevention. Control. and Countermeasures 

EPA, within the CWA, requires non-exempt facilities to prepare Spill Prevention, Control and 

Countermeasure (SPCC) plans to prevent the discharge of oil from non-transportation related onshore and 

offshore facilities into U.S. navigable waters or adjoining shorelines. The SPCC rule applies to owners or 

operators of non-transportation related facilities who drill, produce, store, process, refine, transfer, 

44 For more information, see httos:/lv.ww.dol.gov/whdlovertimelfinal20161. 

45 Nevada v. DOL E.D. Tex. No. 4:16-cv-00731, motion granted 11122115. 

"U.S. Environmental Protection Agency, Superfund Remedial Annual Accomplishments, "Fiscal Year 2016 Superfund Remedial Program 

Accomplishments Report." 

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distribute, use or consume oil or oil products that meet at least one of the capacity thresholds and have the 

potential to discharge oil to U.S. navigable waters or adjoining shorelines. 

One primary concern with SPCC is the overlap with other federal regulations. The most frequently raised 

overlap mentioned was the duplication of the SPCC with the Stormwater Pollution Prevention Plan 

(SWPPP). The duplicative effort required by these two regulations adds costs to the manufacturer and 

delays construction and operations. (37-ILMA, 76-Boeing, 101-AA, 106-AFS, 107-CoC, 114-AGC, 127-

PCA) According to one respondent, "construction site operators are required to develop plans for 

preventing, containing, and cleaning up oil spills under the NPDES and SCPP regulations. If a construction 

site operator has a SWPPP that addresses oil storage and spill control, containment and cleanup 

measures, then EPA should allow the jobsite SWPPP to also satisfy the agency's SPCC requirements. 

Otherwise, this is double regulation- and each plan carries significant costs for the contractor to develop. 

The list of overlapping requirements includes documentation, management certification, site maps and 

diagrams, inspection and maintenance, recordkeeping, training, designated employees, notification 

procedures and response obligations. The U.S. Coast Guard also is involved in spill plans if the project is 

on/over water, which add further delays." 

Equal Employment Opportunity Commission Reporting Requirements 

The Equal Employment Opportunity Commission (EEOC) recently revised its EE0-1 reporting 

requirements so that beginning in 2018 employers must submit more comprehensive and detailed 

information that will be used to enforce prohibitions against employment discrimination and address 

discriminatory pay practices. Employers with 100 or more employees (both private industry and federal 

contractors) will be required to submit data on employees' W-2 earnings and hours worked by ethnicity, 

race, and sex, sorted into 10 job categories. Responding organizations are concerned with the additional 

time and resources that they will need to spend on this form and estimate that the number of reported 

entries will increase from less than 200 data points to over 3,000. (1 07 -COC, 137 -MEMA, 119-AGC, 77-

CIRT, 66-ARTBA, 37-ILMA) Furthermore, responding organizations do not believe that the expanded data 

collection will provide useful information needed to enforce discriminatory pay practices. (107-COC, 137-

MEMA, 119-AGC, 77-CIRT, 66-ARTBA,37-ILMA) Finally, the additional reporting may put a company at 

risk of publicly disclosing employees' private information and/or proprietary company information. (146-

NAM, 66-ARTBA, 37-ILMA) 

Food Safety Modernization Act 

Over the last several years, the Food and Drug Administration (FDA), part of the Department of Health and 

Human Services (HHS), has issued several regulations to implement the Food Safety Modernization Act 

(FSMA). Some portions of the new regulations are complex, and a misinterpretation could cause 

potentially negative consequences for a company. One such regulation, Mitigation Strategies to Protect 

Food Against Intentional Adulteration (lA rule), is aimed at preventing intentional adulteration of food 

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intended to cause wide-scale harm to public health, including acts of terrorism targeting the food supply.47 

The regulation imposes significant new requirements on manufacturers of human food, including 

maintaining certain records. FDA should delay the compliance dates for the lA rule until it has revised the 

regulation to provide for more flexibility and greater focus on risk-based methods of preventing intentional 

adulteration of the food system. (98-IDFA) 

As manufacturing and agricultural processing continually evolves, the FDA should ensure that regulatory 

requirements are flexible and able to adapt to science and innovation. Many agriculture processing 

companies sell secondary products (e.g., germ, feed, meal) from facilities which were not designed to 

handle these ingredients using the same standards for ingredients intended for human consumption. In the 

new FSMA foundational regulations, "manufacturing/processing" has been broadly defined around different 

activities conducted on food. The "farm' has a narrower definition. As a result, numerous activities that 

farms normally use to prepare a food crop for trade as Raw Agricultural Commodities (RAC) can be 

considered activities that transform the crop into a "processed food." A farm conducting these activities 

could be considered a manufacturer/processor and would be subject to food facility registration and to new 

requirements for "good manufacturing practices" and preventive controls. Current regulations will require 

some manufacturers to update facilities or adjust business practices to comply with good manufacturing 

requirements. There is a concern that such requirements are unnecessary and will result in lost jobs and 

lost opportunities for manufacturers. (146-NAM, 122-AHPA) 

Additionally, the FSMA requires sellers (farmers and food processors) to obtain from their customers 

(downstream food processors and distributors) certain "written assurances' on an annual basis. With these 

written assurances in place, the sellers are provided a certain amount of regulatory relief- relief which in 

many cases is essential to the continued existence of their business, since according to respondents it is 

nearly impossible (not just inefficient or uneconomical) for the firm otherwise to comply with the applicable 

regulations. An analysis by the Grocery Manufacturers Association (GMA) determined that just the 

provisions in 21 CFR § 117.136 would require individual firms to obtain thousands or even millions of 

assurances every year. Therefore, the FDA should remove these unnecessary and burdensome provisions 

from the regulations. (70-GMA) 

Commenters raised other concerns about FDA regulations, such as the Nutrition Labelling Standards. To 

provide consumers with clearer nutritional content information for food, based on updated nutrition research 

and public health information, the FDA issued a regulation in May 201648 that would require changes to the 

Nutrition Labeling, 21 CFR §101.9 and Reference Amounts Customarily Consumed Per Eating Occasion 

(serving size) regulations, 21 CFR. § 101.12. These changes represent the first major update to the 

Nutrition Facts label in over 20 years and would require a massive overhaul to the food package label and 

information provided to consumers. FDA provided food manufacturers until July 26, 2018 to make this 

change even though FDA's own Regulatory Impact Analysis for this change estimated the cost to industry 

to comply in two years would be $4.6 billion, whereas the cost to comply in four years would be $2.8 billion. 

47 81 FR 34165 (May 27, 2016). 

'" 81 FR 33741 (May 27, 2016). 

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In other words, just extending the compliance deadline from two to four years saves $1.8 billion. The 

challenge of compliance is compounded because FDA has yet to issue final guidance on the types of 

dietary fiber it considers to meet the new definition, 21 CFR §101.9(c)(6)(i), and information on calculating 

added sugars for some types of food, 21 CFR § 101.9(c)(6)(iii), which must be listed in the new label 

format. Additionally, the USDA is mandated by law to issue a regulation requiring the disclosure of the 

content of genetically modified ingredients in all foods by July 29, 2018, three days after the compliance 

deadline for the Nutrition Facts updates. FDA should extend the compliance date for this labeling update 

until May 2021 to ease the regulatory burden. Additional compliance time would allow companies to 

coordinate labeling updates, provide consumers with clear information to help them make healthy choices 

and avoid wasteful spending on duplicate relabeling schemes that would be required during the next four 

years. Additionally, USDA and FDA should work together on timing of compliance with these required 

changes so that manufacturers will only be required to make one label change. (98-IDFA, 146-NAM, 122-

AHPA, 70-GMA, 74-Knouse) Other regulatory redundancies should also be eliminated between FDA, 

USDA, EPA, and other federal agencies. (53-ACMA, 74-Knouse, 64-TFI, 85-NOPA) 

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Overview of Regulatory Reform 

Over the years, much effort has been spent on regulatory reform by think tanks, industry associations, and 

government agencies. Yet, for several reasons, the burden for manufacturers continues to grow. Through 

the process of writing this report it became clear to the Department that at the manufacturing plant level, 

there are significant opportunities for burden reduction. Respondents provided numerous examples of 

impractical, unrealistic, or onerous requirements and of processes that make permitting unnecessarily 

complex and time consuming. 

Regulators and manufacturers working together can eliminate unnecessary regulatory burdens. These 

unnecessary burdens can be eliminated if regulators work with industry to apply commonsense and 

practicality to regulations and requirements to more closely reflect real world operating conditions. 

Responses revealed the need to reform the permitting process and existing rules and to reduce the current 

compliance burden without impacting benefits. Responses to the RFI revealed the need to also reform the 

process for new rule makings. 

Past Attempts at Regulatory and Permitting Reform 

Over the years there have been many regulatory reform efforts. Prior reform efforts have prescribed 

principles for effective rulemaking, including the use of cost-benefit analysis (CBA), examining alternatives 

to regulations, and retrospective reviews. Yet the regulatory burden has only grown more onerous. 

Factors that have undermined prior reform efforts include: indeterminate and underdeveloped cost-benefit 

models, methodologies and assumptions; a lack of agency effort to comply fully with all rule making 

requirements; and a lack of power and resources in oversight organizations to compel compliance with 

these principles. 

Agency cost-benefit analyses sometimes lack transparency and make self-serving assumptions regarding 

important direct and readily quantifiable costs. Moreover, technically challenging and resource-intensive 

intangible, indirect, and cumulative impacts are often not meaningfully addressed. This includes opportunity 

costs such as impacts on innovation and productivity, despite the potentially far-reaching benefits. 

Regulatory reforms also have required the consideration of alternatives- including market-based 

incentives (rather than a command and control approach). Despite these efforts, agencies tend to make 

assumptions that cast the politically preferred alternative in a favorable light. As a result of these factors, 

the cost-benefit models often fail in certain circumstances to capture the true costs of implementing 

regulation. For some important federal regulations (e.g., listing a species under the Endangered Species 

Act), a cost-benefit analysis is not required at all4 9 

Moreover, current application of principles of regulation often results in unnecessary, unreasonable, 

outdated, and impractical requirements that are of concern to manufacturers. Agencies frequently attempt 

"Independent regulatory egencies are not required to provide a cost-benefit analysis. 

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to skirt the federal requirement to "maximize net benefits" prescribed in EO 128661 by over-weighting of 

qualitative benefits to justify quantitative costs. "Real-world" impacts of regulatory burdens are in many 

cases not adequately addressed. Regulatory agencies too often are not sensitive to concerns from 

manufacturers about overly cumbersome constraints and costs, a failure of agency culture and leadership. 

The Need for Collaboration between Regulators and Manufacturers 

Respondents provided a multitude of examples of unnecessary compliance burdens. Our review is not able 

to evaluate the substance of all the complaints or the soundness of all recommended solutions, but the 

large number of examples suggests there is a significant opportunity for regulatory refonm. 

Rather than consider the retrospective review process as a re-confirmation of the validity of a regulation, 

agencies should adopt the practice of working together with the regulated community- manufacturers, in 

this case-to understand real world burdens (including unintended ones) and to devise potential 

alternative, commonsense solutions collaboratively. Given the myriad challenges in creating a good rule, 

lookbacks with stakeholders could give agencies another opportunity to work toward the goal of avoiding 

regulations that impose unwarranted burdens .so 

This suggestion fits with EO 1377751: "In performing the evaluation [of existing regulations], each 

Regulatory Reform Task Force shall seek input and other assistance ... from entities significantly affected 

by Federal regulations ... " In addition, former Office of lnfonmation and Regulatory Affairs (OIRA) head Cass 

Sunstein recently wrote: "Because the White House itself lacks the capacity to scrutinize the stock of 

existing regulations, the Trump administration was smart to call for task forces within each agency to do 

that and to require them to engage with the public to see which regulations are really causing trouble."52 

This is also very much in line with other nations' reform policies in which government works with the 

regulated community to identify unnecessary burdens. As one former UK government official said, "In the 

UK, by focusing on how we regulated, rather than just what we regulated, we were able to drive enormous 

cost reductions without sacrificing protections. By simplifying forms and processes, compliance became 

much less costly without any underlying regulatory changes or compromising mission."53 This official also 

observes that the cultural change required to accomplish this reform should not be underestimated: "Those 

who work in regulatory policy often focus on designing new regulatory ideas. Typically, they don't 

systematically look for ways to reduce the costs of regulations that are already on the books." 

RFI respondents also call for agencies to review existing regulations with stakeholders. 54 One association 

suggested that a better relationship with manufacturers may help agencies to reduce regulatory burden 

50 EO 12866: "Each agency shall tailor its regulations to impose the least burden on society .. ",September 30, 1993. 

51 EO 13777 (March 1, 2017). 

"Cass R. Sunstein, "Trump's Safe and Sane 'Regulatory Reform' Idea," Bloomberg, March 3, 2017. 

53 Jitinder Kohli, "What President Trump Can Learn From The UK About Reducing Regulations," Forbes, January 27,2017. 

"For example, note the following RFI responses: 48-RFF with regard to EPA and NAAQS; 133- PIA with regard to EPA and flexible air 

permitting; and 53- ACMA with regard to EPA emission modeling (see Docket 10 "DOC-2017 -0001 ," at www.regulations.gov). 

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without sacrificing their missions: "state regulators [in Indiana, Louisiana. Ohio, and Texas are] more 

knowledgeable about ... steel manufacturing, or more willing to take the time to become knowledgeable ... 

Armed with superior knowledge, state personnel often understand the impracticability or inapplicability of 

certain controls or requirements, and are more often open to allowing alternate compliance options that 

reach the same goal through the use of less burdensome means." (112-SMA) 

Examples from RFI responses of commonsense suggestions for reform (that might surface during a 

collaborative lookback) include the following (organized by category): 

Lack of Knowledge about How Industry Operates 

o 'EPA's Risk Management Program rule and other regulations require manufacturers to interact 

with Local Emergency Planning Committees (LEPCs). [But] there are no LEPCs in many areas. Of 

the 100 counties in North Carolina, for example, only 40 have functioning LEPCs." (53-ACMA) 

o [Regarding OSHA's Hazardous Air Contaminants Standards; for employers seeking to meet 

through an engineering calculation or evaluation they conduct] "Powered ventilation is generally the 

most effective and widely used technology to limit exposures to hazardous airborne substances in 

composites manufacturing workplaces. PPE [personal protective equipment] is also employed 

when the nature of the work limits the ability of employers to achieve safe exposure levels via 

ventilation alone. However, several industry employers have been cited by OSHA for using PPE 

when they have not "proven" that engineering control would not be sufficiently effective .... " (53-

ACMA) 

o "FDA regulatory provisions implementing the Food Safety Modernization Act (FSMA) require 

sellers (farmers and food processors) to obtain from their customers (downstream food processors 

and distributors) certain "written assurances" [re food safety hazards] on an annual basis ... An 

analysis by the Grocery Manufacturers Association determined that just the provisions in [one of 

several specific regulations] would require individual firms to obtain thousands or even millions of 

assurances every year .... " (122-AHPA) 

o [Regarding Non-Complying Lots-- 40 CFR. § 770.2om. which requires fabricators that received 

notification from a producer of panels that failed an emissions test. to inform customers that their 

finished products contained these panels.] "First, by the time the fabricator receives the panel 

producer's notification. the panels almost certainly no longer exist as panels. Instead, the fabricator 

will almost certainly have cut up the affected panels it received into component parts, incorporated 

those component parts into finished goods, and shipped those finished goods. Second, the 

affected panels are untraceable once they are incorporated into finished goods. A fabricator does 

not track which panels go into which finished goods ... Third, in the fabrication process the panels 

are covered with veneers or other coatings. This means that it is no longer feasible to test the 

panels accurately for compliance with the emissions limits. Fourth, the fabricator's notification is 

very likely to be completely unnecessary, because by the time the customer receives its 

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notification, the affected panels will probably have aged to the point that they now meet the 

emissions limits." (67-AHFA) 

o [Regarding CWA §316(b)- Cooling Water Intake Structures (CWIS) --Entrainment "Best 

Technology Available" (BTA) for facilities withdrawing less than 125 MGD] "Facilities withdrawing 

less than 125 MGD are not required to submit entrainment information however the permitting 

authority is still required to make a determination about the BTA to minimize entrainment... 

Permitting authorities generally lack the technical expertise in such areas, so it requires the 

penmittees to provide the permitting authority with adequate technical information to support the 

BTA detenmination. A 52-week entrainment study can range from $140,000 to $410,000." (147-US 

Steel) 

o "([Regarding] Toxic Substances Control Act (TSCA) regulation ... Chemical Data Reporting (CDR) 

regulations require exceptionally detailed monitoring, recording, and reporting of the chemical 

make-up of our members' steel and steel coatings, raw materials ... ) It is overly burdensome to the 

steel industry to report on the general safety of a product that has been widely produced for several 

centuries and whose chemical makeup is well known and that poses little risk from exposure." (92-

AISI) 

o "EPA should ensure remediation cleanup standards are reasonably achievable ... for example 

cleanup standards may be set below background concentrations that can never be achieved at a 

cleanup site until sources in the wider area are controlled .... " (76-Boeing) 

o "FDA has formally acknowledged under various circumstances that reliance on batch records is an 

accurate and practical method for assuring that finished food products meet required compositional 

specifications for ingredients that are chemically complex or for which no validated test method 

exists ... [But] during inspections of firms under 21 CFR Part 111, FDA often pushes finms to 

implement expensive chemical testing for such ingredients (which would cost at least hundreds 

and potentially thousands of dollars per batch of product)- or to prove that no such chemical test 

method exists (an exercise that is expensive and pointless, since it's impossible to prove a 

negative and it is very rare for valid test methods to exist for chemically complex food ingredients, 

especially in a chemically complex matrix)." (122-AHPA) 

Inconsistent Enforcement 

o "Differential enforcement of a regulatory requirement across geographies (i.e., inspectors 

interpreting a regulation differently in two different manufacturing locations) is so troubling to 

compliance officials."ss 

ss National Association of Manufacturers, "Holding US Back: Regulation of the U.S. Manufacturing Sector," prepared by Pareto Policy 

Solutions, LLC. 

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o "Inconsistent Federal implementation of the RCRA Corrective Action process from region to region 

and site to site ... causes ... increased cost and lost opportunities due to unpredictable or longer 

lime periods for addressing impacts to the environment." (147-US Steel) 

Antiquated Rules 

o "The current Leak Detection and Repair (LDAR) rules require point-by-point monitoring for leaks 

(Method 21) for every LDAR component (valves, pumps, compressor seals, pressure relief 

devices, etc.). This is very time consuming and inefficient. Infrared cameras (IR camera) are now 

voluntarily used in manufacturing to detect leaks much more quickly and efficiently. The use of 

these IR cameras should be a technology option to replace the current antiquated LDAR rules." 

(89-IECA) 

Technology Requirement is Too Expensive or Unproven (Unrealistic Assumptions or Cost is Too High) 

o "FDA regulation 21 CFR 111, Current Good Manufacturing Practice (cGMP) in Manufacturing, 

Packaging, Labeling, or Holding Operations for Dietary Supplements, includes Section 111.605 (a) 

and (b) ... requires that all electronic records comply with 21 CFR 11, a burdensome and complex 

requirement to validate computer systems that was developed for drug manufacturers. The 

software and hardware validation requirements are costly, difficult to maintain, and fail to provide 

added security ... Small and midsize dietary supplement manufacturers that lack the resources to 

validate computer systems are burdened with maintaining hard copies and using hand-written 

records, which is a costly, inefficient, and unnecessary clerical obligation .... " (63-CRN) 

o "The PSD BACT evaluation process, spelled out through EPA guidance, should not include 

unproven technologies employed in other countries that have not been demonstrated as 

commercially feasible or effective at controlling emission in the U.S. Requiring domestic facilities to 

conduct technology reviews and costly feasibility analyses of technologies utilized in countries that 

do not have the same rigorous air pollution control and permitting requirements, places 

unreasonable permitting demands and delays on the already lengthy U.S. permitting process." (92-

AISI) 

Complex. Onerous Processes, e.g .. Unnecessary Recordkeeping 

o "In past years we dedicated the majority of our environmental resources to emission reduction 

equipment that has dramatically reduced our impact on the environment. In more recent years, the 

majority of our environmental resources have been dedicated to monitoring and record keeping. 

Reducing the frequency of monitoring, and reducing the amount of record keeping and reporting 

would be very beneficial. We believe that we can adequately demonstrate ongoing and continuous 

compliance with reduced levels of monitoring and record keeping." (112-SMA) 

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o "For permitting projects ... USEPA and States ask for endless pieces of infonmation that are not 

necessary to issue a permit or approve a submittal; and are beyond what is required by statute and 

the implementing regulations. Frequently, the agencies indicate the information is needed to 

address questions or concerns from third parties-'we need this information because somebody 

may ask about it or because it would be nice to know."' (147-US Steel) 

o "Review and streamline data requirements to ensure that only data that is required for a permit 

decision is required to be submitted.' (79-Northrup Grumman) 

o "Record Keeping Mandate on EPA Air Permitted Standby Engines: 40 CFR Part 51 (Subpart A) ... 

Standby engines rarely operate but companies, by law, are required to report emissions data ... in 

2016, a company reported total emissions from emergency engines (generators and fire pumps) as 

follows. [Table shows emissions sum= 0.005716 tons per year) The company estimates that it 

takes $500 (5 times $100 per engine) per year to monitor, report, and do maintenance as EPA 

instructs them to do. Given the costs and given the emission volume, it cost about $90,000 per ton 

of emissions." (89-IECA) 

Review of Ex1sting 

Reducing the existing regulatory burden is perceived by some respondents to be more critical than 

reforming the process of creating new regulations.ss Retrospective reviews of existing regulations have 

been required since the Carter administration, but like reforms for rulemaking processes, retrospective 

reviews often do not receive appropriate emphasis. 

The need for retrospective review is straightforward. Although public engagement is critical before rules are 

written, retrospective reviews give agencies and the regulated community an opportunity to assess a 

regulation's actual impact- costs and benefits- using real numbers and experiences. "Lookbacks" would 

allow agencies to examine unintended costs as well as identify (and ameliorate) unnecessarily burdensome 

compliance requirements. 

There are many reasons why meaningful retrospective reviews are rare. The overriding reason is probably 

the same as for new rules (above): there are "insufficient incentives"57 to overcome the strain on resources 

required to conduct these reviews. Some sources suggest that agencies are biased and that "External 

funds must be provided to give disinterested researchers an incentive to conduct unbiased and 

independent studies."sa 

56 National Association of Manufacturers, "Holding US Back: Regulation of the U.S. Manufacturing Sector· prepared by Pareto Policy 

Solutions, LLC and NERA Economic Consulting, "Macroeconomic Impacts of Federal Regulation of the Manufacturing Sector." Prepared for 

the Manufacturers Alliance for Productivity and Innovation (MAPI), August 21,2012. 

''Winston Harrington, "Grading Estimates of the Benefits and Costs of Federal Regulations: A Review of Reviews," Resources for the Future 

(RFF) Discussion Paper, September 2006. 

58 Ibid. 

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Several models were suggested such as creating another non-partisan entity like the Congressional Budget 

Office (CBO) which avoids making policy recommendations and focuses on unbiased analysis; and, in this 

case, the new entity would identify regulations that are in need of reform or elimination.s9 Regulatory 

Reform Task Forces (RRTFs) have been formed (via EO 13777) within each agency and they can help 

play this role if members are given sufficient autonomy and capacity to focus primarily on regulatory reform 

activities. Because of the limited resources historically made available for reviewing existing regulations, 

and the tendency for agencies to be biased in favor of their respective regulatory authorijies, constant 

attention and oversight of their efforts will be required in order to make sufficient progress. 

President Trump's Executive Order 13771 also provides the forum and structure for an ongoing 

retrospective review by requiring agencies to implement a "2 for 1" (also known as "one-in, two-out," or CutGo) mandate that requires the elimination of regulations or costs of existing regulations to offset the 

burdens of a new regulation. Countries such as the United Kingdom, Canada, the Netherlands, and 

Australia have implemented a version of this program. 60 In Senate testimony, Senator Mark Warner 

claimed that the United Kingdom went from being the epitome of regulatory oppression to surpassing the 

United States in international competitiveness in part because of its ongoing PAY GO-type policies.61 

Reforrnmg the Permitting Process 

According to respondents, "permitting requirements are numerous and quite onerous." (112-SMA) 

Permitting- particularly related to the Clean Air Act and Clean Water Acts- was the most frequently 

cited concern, and often identified as a top priority regulatory burden. The Clean Air Act New Source 

Review (NSR) program was described by many as the most significant permitting challenge and 

impediment to construction of new manufacturing plants and modernization of existing facilities. 

Beyond the reforms to specific regulations and permitting processes called for in this report, there are two 

overarching problems that must be addressed throughout federal permitting. The first is overlap, duplication 

and lack of coordination among agencies, permitting processes, and reporting requirements. The second is 

uncertainty in the permitting processes. 

Overlap, Duplication and Coordination 

Many RFI respondents raised concerns that EPA "second-guesses" state decisions. (170-APF) "Even in 

cases where a state issues CAA permits under an EPA-approved [state implementation plan], there are 

instances when decisions made by the permitting authority are re-evaluated and revisited by EPA, 

duplicating the efforts of the agencies and adding uncertainty for the permittee." (126-API) 

ss Philip A. Wallach, "An Opportune Moment for Regulatory Reform", Brookings, April2014. 

60 All4 nations focus on cutling costs not number of regulations; Australia, Canada, and the Netherlands focus on red-tape or administrative 

costs; the United Kingdom's definition is broader but focuses heavily on .red.tape. 

51 How Best to Advance the Public Interest: Hearing before the Committee on Homeland Security and Governmental Affairs, U.S. Senate, 112'" 

Congress, (2011) 

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In addition, there were examples cited of "overlapping jurisdiction of federal agencies and programs" (146· 

NAM) such as: 

o "Aspects of RCRA and CAA penmits" (158-CKRC) 

o "NSR and Title V permits can have significant overlap ... " (109-Valero) 

o "EPA and the U.S. Army Corps of Engineers: Water and wetlands." (146-NAM) 

o "EPA's Integrated Risk lnfonmation System, EPA's risk evaluation programs under the Toxic 

Substances Control Act, the CDC's Agency for Toxic Substances and Disease Registry 

Toxicological Profiles program, and NIH's National Toxicology Program Office of Report on 

Carcinogens have largely redundant missions." (53-ACMA) 

In some cases, multiple regulations or agencies require the same information: "Companies are often 

required to separately report the same information to multiple regulatory offices and programs, including at 

the federal, state and local level. For example, data on air emissions are typically reported as part of penmit 

compliance reports, to state air emission inventories, and to EPA's Toxic Release Inventory program." 

(152-AWC) 

A related issue is the lack of coordination of the review process when more than one agency is involved: 

"US Anmy Corps of Engineers has authority for Section 404 permitting. However, in order to get the permit, 

review and consultation is required for multiple other federal agencies ... all raising issues about maintaining 

sufficient bird and fish habitat." (126-API) 

Overlap, Duplication and Coordination -Potential Solutions. Many respondents suggested that federal 

agencies (primarily EPA) should defer to states in order to: " ... reduce, if not eliminate, federal secondguessing. Substitute individual permit oversight with federal programmatic overview of state adherence to 

permitting requirements. States should be evaluated on how their program is performing, not 

micromanaged on each and every penmit decision." (170-APF) 

In other cases, where multiple agencies must be involved, many respondents suggested something similar 

to FAST -41 type provisions: 

o "Designate Lead Agency to coordinate responsibilities among multiple agencies involved in project 

reviews." 

o "Provide for concurrent reviews by agencies, rather than sequential reviews."62 (107-COC) 

"The Water Resources Reform and Development Act of 2014 is another FAST -41 type model for permitting refonn according to 109-Valero: 

' ... ovemauled the Corps' planning process by creating a strict three-year deadline and $3 million federal cost limit for feasibility studies. It 

required different levels of Corps review to occur concurrently and eliminated duplicative requirements, such as multiple cost-estimates and a 

reconnaissance study. [Also] designated the Corps to be the lead agency coordinating reviews for civil worl<s projects .... " 

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Respondents also offered the following best practice examples: 

o "Ohio EPA piloted a program in which it took normally sequential steps in permit processing and 

executed them in parallel, significantly reducing overall permit processing time." (170-APF) 

o "Indiana Department of Environmental Management's air program processes construction penni! 

applications and associated Title V permit modification for projects concurrently .... " (147-US Steel) 

o "The California Unified Program Agency (CUPA) consolidates hazardous waste and hazardous 

materials requirements of multiple programs into a single regulatory entity. The result is simplified 

permitting, reduced regulatory complexities and reduced management burden." (79-Northrup 

Grumman) 

One association suggested a "reporting portal" to be created by EPA with state and local regulators to 

"allow manufacturers to report information needed by regulatory programs only once." (152-AWC) 

Several RFI respondents suggested that a specific coordinator is needed, such as a federal office 

responsible for permit coordination (106-AFS), or an EPA ombudsman: "This supervisory body could 

[provide] the regulated community with a means for coordination across various environmental media 

(water, air, etc.) and across various agencies (e.g., EPA, Army Corps of Engineers, Fish & Wildlife), 

perhaps even including state and local agencies or authorities." (76-Boeing) 

Uncertaintv Related to Penni! Processes 

Permitting challenges are exacerbated by uncertainty, as addressed in many of the RFI respondents 

complaints. Uncertainty comes from inter-related issues driven by complexity such as "case-by-case' or 

"one-off' reviews, which often "reinvent the wheel." There is also a general lack of consistency, which then 

contributes to uncertain timelines, which itself is exacerbated by the threat of delay driven by public 

protesUiitigation. This complex situation is then made more uncertain by lack of transparency/poor 

communication. While uncertainty is also a problem in non-pennitting regulations (discussed above), it 

appears to be a significant and systemic problem in environment-related permitting: "Environmental 

permitting has many sources of uncertainty, including ... timing, procedures, the roles of various agencies 

in multi-agency review projects, and the data that the permitting authorities use and rely upon in making 

permitting decisions. Often, this variability is based on the views and expectations of a particular regional 

office or specific employee or office within EPA. Other times, the requirements can apply Agency-wide yet 

still create uncertainty. EPA, for example, is inconsistent in its data demands and the procedures by which 

it approves projects .... ' (112-SMA) 

Environmental permitting is so complex that respondents described having to hire several consultants and 

lawyers to help "navigate" the "elaborate mazes" that permit regulations have become. (170-APF) 

Moreover, this appears to be true of "even simple modifications" to regulations. (112-SMA) One association 

wrote, "Obtaining a penni! for just one CAA program alone (the NSR program) can require the permittee to 

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review nearly 700 posted guidance documents .... " (170-APF) For manufacturing firms, the uncertainty of 

the permitting duration, which can take years, may be the greatest challenge. "The lack of certainty as to 

when the permit will be issued ... create(s) significant burden, compliance difficulty, and business 

uncertainty .... " (126-API) Permitting delays are partly driven by complexity and lack of coordination as 

discussed above. But some respondents blamed agency staff for contributing to the problem, claiming staff 

can "sit on an application until their allotted time is almost up before looking at it regardless of how minor or 

simple the task." (114-AGC) On the other hand, other respondents claimed that delays are sometimes due 

to insufficient staffing resources at permitting agencies. (79-Northrup Grumman; 126-API; 123-3M) 

Delays are not only driven by the agency or agencies. Lawsuits or "not-in-my-backyard activism" (107-

COC) are a significant permitting issue: "Even where a permit remains valid pending resolution of the 

litigation, significant uncertainty can be introduced into the process of building or expanding a facility and it 

can take years to resolve all issues." (136-AFPM) While this is not under the control of regulatory agencies, 

it does increase the uncertainty for manufacturers in making investment decisions. 

Lastly, according to respondents, EPA's lack of straightforward communication adds to manufacturers' 

burden: "EPA does not provide clarity on its procedures and information requirements. These transparency 

problems are significantly compounded when EPA changes its requirements through Agency-generated 

guidance without notice to the applicants or the ability to comment on, or ask questions about, the 

guidance." (112-SMA) As one example, an association explained that a Congressional requirement that 

EPA publish all state implementation plans (SIPs) was put in place "because it was virtually impossible to 

determine which regulations were currently approved as part of the SIP. This lack of transparency serves to 

delay projects simply because discerning what regulations apply presents its own challenge."63 

Uncertainty- Potential Solutions. FAST -41 is often praised as a step in the right direction for permitting 

reform. Established under Title 41 of the Fixing America's Surface Transportation (FAST) Act (42 U.S.C. § 

4370m), FAST-41 was designed to improve the timeliness, predictability, and transparency of the federal 

environmental review and authorization process for "covered" infrastructure projects. 54 

FAST-41 created a new Federal Permitting Improvement Steering Council (FPISC), with representation 

from Deputy Secretary-level members and led by a presidentially-appointed Executive Director. It also 

created agency Chief Environmental Review and Permitting Officers (CERPOs). Covered projects 

voluntarily gain access to improved authorization and environmental review processes such as early 

consultation, coordinated projects plans, project timetables, public Dashboard tracking,ss and dispute 

resolution procedures. 

63 CAA Section 1101hl(1) requires 'EPA to assemble and publish all' SIPs: but EPA is not complying. (170-APF). 

64 For more information, see hHps:llwww.permits.perfonnance.gov/abouVfast-41. 65 For more information, see hHps://www.permits.perfonnance.gov/proiects. 

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Covered projects are defined as any activity in the United States that requires authorization or 

environmental review by a federal agency involving: 

• Construction of infrastructure in a designated sector 

• That is subject to NEPA, and 

o Does not qualify for an abbreviated review process and is likely to cost more than $200M; 

or 

o Is of a size/complexity likely to benefit from enhanced oversighUcoordination in the opinion 

of the Council, including: 

Projects likely to require an Environmental Impact Statement 

Projects likely to require reviews from more than two federal agencies. 

Infrastructure includes (with some exemptions): manufacturing projects as well as renewable energy 

production, conventional energy productions, electricity transmission, surface transportation, aviation, ports 

and waterways, water resource projects, broadband, pipelines, aviation, and any other sector determined 

by a majority vote of the FPISC. 

The initiative is new, with the inventory of existing covered projects just added to the Dashboard in 

September 2016. For that reason, one commenter recommended "revisit[ing]lessons learned from FAST 

41 (sic) permit streamlining later when the FAST 41 program is more mature." (128-Pugh) At the same 

time, the U.S. Chamber of Commerce directly asked that "the administration's permit streamlining efforts 

are consistent with FAST -41 activities already being administered by the Office of Management and 

Budget." (107-COC). NAM noted the potential value of implementing in concert Executive Order 13766, 

"Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects," and FAST -41. 

(146-NAM) 

Although manufacturing is a covered sector under FAST -41, given the short history of FAST -41 and the 

strict definition of covered projects, the manufacturing community has yet to share in its benefits. Several 

of FAST -41's key provisions (107-COC) would be extremely beneficial if they were to be applied to 

manufacturing industry permitting: 

o "Establish a permitting timetable, including intermediate and final completion dates"; 

o "Require that agencies involve themselves in the [permitting review] process early and comment 

early, avoiding eleventh-hour objections that can restart the entire review timetable"; and 

o "Reduce the statute of limitations to challenge a project review from six years to two years." 

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RFI respondents echoed these types of recommendations. Florida offers a best practice model, illustrating 

that an efficient permitting process is possible: "The SNAP (Simplified Nimble Accelerated Permitting) 

process, used by state and municipal agencies in central Florida engages in streamlined, efficient and rapid 

construction permitting ... transform[ing] an onerous and time consuming process into a reasonably 

straightforward and user friendly permit acquisition process." (79-Northrup Grumman). 

A frequently discussed provision of FAST -41 -the "searchable, online 'dashboard' to track the status of 

projects during the environmental review and permitting process" (1 07 -COC)- addresses transparency. In 

addition, a respondent cited a similar best practice in this area by a federal agency: "The FCC has most of 

its experimental license application process available on-line. It is easy to see that an application is in the 

system, and any comments or requests are also visible. The history of most experimental licenses is 

available, going back several years." (79-Northrup Grumman) 

To address over-complexity respondents suggested various types of permitting standardization as well as 

best practice examples: 

o "Replace uncertain case-by-case permit review programs with standardized regulatory decisions 

that are periodically updated through rulemaking after public notice and comment" (112-SMA) 

o "Develop pre-approved specifications for permits to simplify and shorten the permit process." (79-

Northup Grumman) 

o Offer "general permits that companies can opt into for standard pieces of equipment...." (170-APF) 

o "U.S. EPA should promote and directly facilitate issuance of innovative air quality permits by 

state/regional permitting authorities, especially permits that "advance- approve" changes at 

manufacturing facilities." (123-3M) 

o Streamlined permitting for "minor" projects are offered by the Pennsylvania Department of 

Environmental Protection (online self-registration forms using templates) and the State of Texas 

(permit-by-rule program). (158-CKRC) 

In addition, one respondent suggested that "Federal agencies should implement Lean [Six Sigma] practices 

to streamline permitting" and noted that EPA regional offices are attempting to do this. The respondent 

goes on to say Lean practices can help agencies reduce uncertainty and inefficiency and shorten 

schedules and points to the Arizona Department of Environmental Quality as having had success with Lean 

efforts. (76-Boeing) 

In addition to reducing the time limit for challenging a permit from 6 years to 2 years as described above, 

there were a few other recommendations as to how to improve the processes by which permitting decisions 

and projects can be opposed. One association related a case where a firm settled a lawsuit brought by an 

environmental group even though the regulatory agency had found that the facility had done nothing wrong. 

The association suggested: "The applicable provisions of the major environmental statutes must be revised 

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to introduce reasonable but tough thresholds to control the right of third parties to unreasonably intervene 

resulting in delays and expenses to industry. The thresholds must be based on local agency negligence, 

fraudulentlunlawful behavior or inappropriate influence." (89-IECA) 

Also, because of the potential of a lengthy permitting process, lack of "grandfather" protection can be 

exploited by objectors and is a recommended reform: "Without [grandfather] protection, project opponents 

will have an incentive to delay the permitting process as long as possible in the hope that the area will be 

designated NA [nonattainment] before a final permit can be issued. A more consistent grandfathering 

approach would ensure that companies do not spend years trying to obtain a PSD permit, only to reach the 

end of the process and find they now need to get an NA NSR permit (with offsets that may not be available) 

rather than a PSD permit." (48-AF) 

New Rules: Improving the Rulemaking Process 

The Office of Information and Regulatory Affairs (OIRA) review of agency rules should be reaffirmed in a 

number of ways. 

o Cost benefit analysis methods should be refined, and made more rigorous and enforced by OIRA, 

with a view toward continual improvement, including development of new methods and more 

thorough evidence bases. 

o Cumulative costs should be rigorously weighed where appropriate. 

o Regulations should not impede innovation. 

o There should be meaningful public engagement prior to issuing significant proposed rules. 

o Regulations should be more sensitive to the impact on small business. 

o Regulations should only be enacted and enforced when there are adequate resources available for 

review, implementation and oversight. 

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Recommendations and Priority Areas for Reform 

Through submitted comments, industry expressed clear support for the need to protect the environment, 

human health, and worker safety, but shared concrete, detailed concerns with how the federal government 

has set out to achieve those objectives through regulation, guidance documents, and other means. They 

identified numerous regulatory and permitting problems that include: 

Onerous and lengthy permitting processes that increase cost, add uncertainty, and inhibit 

investment in and expansion of manufacturing facilities; 

Inadequately designed rules that are impractical, unrealistic, inflexible, ambiguous or lack 

understanding of how industry operates; 

Unnecessary aspects of rules, or unnecessary stringency, that are not required to achieve 

environmental or other regulatory objectives; 

Overlap and duplication between permitting processes and agencies; and 

Overly strict or punitive interpretations of guidance, policies or regulations that are often counter to 

a pro-growth interpretation. 

The Department identified twenty sets of regulations and permitting reform issues from the respondents as 

being a top priority for immediate consideration. Consistent with previous studies on the costs of federal 

regulations, comments on Environmental Protection Agency (EPA) rules dominated the responses from 

industry, and constitute the bulk of the Department's recommended Priority Areas for Reform. 

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Priority Areas for Reform 

Clean Air Act 

1. New Source Review (NSR) or Prevention of Significant Deterioration (PSD) permits: 

a. Enforce the one-year turnaround time on NSRIPSD permit applications.66 

b. Reduce statute of limitations on challenges or appeals to one year. 67 

c. Allow non-emitting construction activities to commence prior to receiving a permit.68 

d. Consider options to revise the definition of Routine Maintenance, Repair & Replacement 

(RMRR) to provide more flexibility. 69 

e. Promote and facilitate use of flexible permitting mechanisms associated with PSD and Title 

V including, but not limited to, plant-wide applicability limits (PALs) and alternative 

operating scenarios. As part of this, consider any regulatory or other changes (e.g., 

guidance) that could facilitate more widespread use of these flexible permitting tools.Yo 

f. Develop opportunities to streamline NSR applicability determinations and/or to reduce the 

number of facilities and projects that may be subject to NSR through evaluating and 

pursuing regulatory and guidance options for addressing aggregation, project netting, 

debottlenecking, and the methodology by which pre and post construction emissions are 

calculatedn 

"EPA will coordinate with state and local air agencies, as well as EPA regional offices, to develop best practices. guidance, or regulatol)' 

revisions necessal)' to ensure that NSR permits are issued consistent with the 12-month timeline described in the CAA. 

" EPA is pursuing regulatol)' action intended to streamline the Title V process. Congressional action would be required to reduce statute of 

!imitations. 

"EPA would need to review existing regulations and guidance and identify situations for which it would be appropriate to provide additional 

clarity and/or opportunities to begin construction without an NSR/PSD permit. 

69 Legislation would be required for a change to the statuto/)' definition. Respondents recommended considering potential regulatol)' actions to 

provide clarification and flexibility. 

10 EPA could conduct outreach to educate sources and permitling agencies on the benefits of flexible permitling tools and also consider minor 

changes to PAL provisions to provide more incentives for sources to use PALs. The EPA intends to highlight and encourage use of flexible air 

permitling options. 

" EPA should review existing regulations and guidance to identify opportunities to address these issues and provide more flexibility through 

regulatol)' actions. Litigation is pending over EPA's 2009 aggregation and project netling rule; this litigation is pending resolution of EPA's 

reconsideration process. 

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g. Issue guidance on modeling concurrent with promulgation of revised National Ambient Air 

Quality Standards (NAAQS), to ensure timely clarification on modeling required as part of 

a NSR applicationn 

h. Consider opportunities to "grandfather" NSR applications following revision of a NAAQS. 73 

Consider opportunities to emphasize key aspects of the Best Available Control Technology 

(BACT) analysis including, but not limited to, expectations regarding technology 

determinations. 74 

j. Consider opportunities to expand the purchasing offsets outside of the local areas as well 

as other offset related revisions which would provide increased flexibility and burden 

reduction. 

2. Tille V Operating Permits (incorporates all of the federal and state air pollution control 

requirements): Extend the term of the permit from 5 to 10 yearsJS 

3. National Emissions Standards for Hazardous Air Pollutants (NESHAP): 

a. EPA should increase efforts to reduce costs and avoid duplicative requirements in 

conducting reviews of NESHAP standards. 

b. EPA should take steps to ensure that any new requirements considered under Residual 

Risk and Technology Reviews (RTRs) would not be redundant or unreasonablycostlyJ6 

4. Consider options to provide relief for facilities through affirmative defenses or other avenues to 

account for unforeseeable and uncontrollable emissions during periods of startup, shutdown, and 

malfunction (SSM). The EPA previously adopted an interpretation which exempted SSM periods 

from the emissions restrictions that apply under normal operating periods. n 

5. National Ambient Air Quality Standards (NAAQS): 

n EPA has committed to timely issuance of guidance. 

73 Existing regulations provide some opportunities for "grandfathering" NSR applications. 

74 EPA would need to evaluate what could be provided to streamline BACT determinations. 

75 The EPA is completing the petitions rulemaking that will revise part 70 to clarify and streamline the process by which EPA receives and 

reviews Title V petitions, thereby increasing transparency and efficiency for regulated entities and environmental agencies. This action will 

address how EPA intends to review Title V petitions in an effort to reduce opportunities to raise NSR issues in the context of Title V. 

76 Under its existing authorities EPA is taking action to harmonize NESHAP and NSPS obligations. 

n Pending litigation in Walter Coke, Inc., et al. v. EPA, No. tS-1166 (D.C. Cir.) (challenge to SSM SIP) and in American Municipal Power v. 

EPA (Sup. Ct.). Whether such exemptions and affirmative defenses can be allowed under the CAA is central to the litigation. 

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a. EPA should develop options that consider 'real-world measurements' instead of 

"probabilistic models" for the PSD program. 78 

b. Extend NAAQS reviews from 5 to 10 years.79 

c. Ozone: Delay implementation of the 70 parts per billion (ppb) standard or retain the earlier 

75 ppb standard. Observers stated the 70 ppb level is approaching "background" levels of 

ozone in certain areas.ao The pace at which the standard is being tightened seems hurried; 

implementation is further complicated by measurement and air quality modeling issues, in 

particular accounting for ozone transported from international sources. 

6. Consistent with its authorities under section 111 of the CAA, EPA should consider adding 

exemptions for research and development (R&D) related activities or otherwise streamline 

requirements for R&D activities for New Source Performance Standards. at 

7. EPA should issue a Unified Coating Rule (UCR) that facilities could choose to meet (replacing the 

eight overlapping NSPS and NESHAP regulations that apply to coatings).B2 

Clean Water Act 

8. Waters of the United States Rule: Reconsider the rule to define more narrowly "waters of the US' 

to exclude ephemeral tributaries. EPA and the U.S. Army Corps of Engineers (USACE) are 

reviewing the existing Clean Water Rule and its definitions of "navigable waters" as directed by 

Executive Order 13778. II On July 27, 2017, the EPA and the USACE published a proposed 

rulemaking to repeal the 2015 Clean Water Rule and reinstate the regulations in place prior to its 

issuanceB3 As indicated in the proposed withdrawal, the agencies are implementing EO 13778 in 

two steps to provide as much certainty as possible as quickly as possible to the regulated 

community and the public during the development of the ultimate replacement rule. In Step 1, the 

agencies are taking action to maintain the legal status quo of the rule in the Code of Federal 

78 The EPA is concerned that this approach would result in a directive that would impose greater costs on regulated facilities. This issue is 

similar to many raised in the NSR/PSD suggestion. 

79 Altering the NAAQS timeframe would require congressional action. EPA should consider opportunities to ensure that any forthcoming 

reviews are not redundant and are completed expeditiously. 

80 OniJoing litigation: Murray Energy Corporation et al. v. EPA, No. 15-1385 (and consolidated cases), (D.C. Cir.) (challenge to the 2015 ozone 

NAAQS). 

"See 40 CFR sections 60.40(c) and (d); 60.292(d); and 60.332(h). EPA is evaluating its authority to exempt R&D related activities under 

section 111. The EPA has routinely considered adding exemptions for R&D related activities and has added specific R&D exemptions in the 

past. 

"There is ongoing litigation regarding several NESHAP. EPA cannot provide specifics. EPA has court ordered deadlines to complete risk and 

technology reviews for several NESHAP that apply to certain coatings. EPA should consider options with an UCR to provide fiexibility that 

encourages facilities to meet the rule by using pollution prevention approaches. 

83 82 FR 34899 (July 27, 2017) 

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Regulations, by recodifying the regulation that was in place prior to issuance of the 2015 Clean 

Water Rule. Currently, Step 1 is being implemented under the U.S. Court of Appeals for the Sixth 

Circuit's stay of the nule. In Step 2, the agencies plan to propose a new definition that would 

replace the approach in the 2015 Clean Water nule with one that reflects the principles in EO 

13778. 

9. Section 40484 and National Pollutant Discharge Elimination System (NPDES) permits: Provide 

permit applicants with clear descriptions of required steps and additional tools to assist them in 

completing the permitting process .as 

10. Resource Conservation and Recovery Act (RCRA): Inappropriate classifications of waste streams 

as "hazardous" prevent or discourage recycling, reuse or reclamation. Aggressively review lists of 

hazardous waste to consider delisting certain compounds/materials/liquids that could easily be 

reused or recycled, but for this classificationB6 

11. Revise the Crystalline Silica Standard. A 2016 Department of Labor (DOL) Occupational Safety 

and Health Administration (OSHA) rule was finalized which cut in half the permissible exposure to 

crystalline silica (for general industry and maritime) from 100 to 50 micrograms per cubic meter. 

Recommendation is to keep allowed level at 100 micrograms per cubic meter.B7 II DOL announced 

on April 6, 2017 that it would delay enforcement of the respirable crystalline silica standard for 

construction until September 23, 2017, to conduct additional outreach and provide educational 

materials and guidance for employers. 

12. Revise the OSHA rule to Improve Tracking of Workplace Injuries and Illnesses by removing 

requirement to disclose records of workplace injuries and illnesses and to alleviate the duplicative 

nature of work-related injury information collection. Clarify in guidance that this nule should not 

undermine safety incentives and drug testing programsB8 II DOL has proposed delaying until 

December 1, 2017 the initial reporting of data on workplace injuries and illnesses (Form 300A) in 

order to give the administration an opportunity to review the new electronic reporting requirements. 

The proposed five-month delay would be effective on the date of publication of a final rule in the 

84 Section 404 Permits are under the purview of the US Army Corps of Engineers. 

85 EPA and USAGE should explore opportunities to truncate the permitting processes and elevate any barriers, such as needed regulatory 

changes, to senior leadership for consideration. 

86 1n 2015 EPA published a comprehensive revision to its rules governing the recycling, reuse and reclamation of hazardous secondary 

materials, where these materials would otheiWise become listed or characteristic hazardous wastes if discarded rather than recycled. 

" Pending litigation. Could be modified or repealed by agency notice-and-<Xlmment rulemaking, but must remain consistent with underlying 

statutory provisions in the Occupational and Safety and Health Act, 29 U.S. C.§ 655(b)(5). 

88 Could be modified through further notice-and-<:omment rulemaking (underlying statutory requirement that companies maintain certain injury 

reccrds). This issue is pending litigation. 

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Federal Register. Furthermore, DOL has announced its intention to issue a proposal to reconsider, 

revise, or remove other provisions of the Improve Tracking of Workplace Injuries and Illnesses final 

rule, 81 FR 29624 (May 12, 2016). 

13. Revise Section 1502 of Dodd-Frank Act. Remove the Securities and Exchange Commission 

(SEC) requirement on manufacturers to "undertake 'due diligence' on the source and chain of 

custody of its conflict minerals and file a Conflict Minerals Report" and to disclose publicly this 

information.a9 II On April 28, 2017, the SEC suspended enforcement of the rule until ongoing 

litigation [Nat'! Ass'n of Mfgrs v. SEC, No. 13-5252 (D.C. Cir. Apr. 14, 2014)] has concluded. 

14. Rescind Section 953(b) of Dodd Frank Act which requires CEO pay ratio disclosure.9o II On 

February 6, 2017, the SEC opened a 45-day comment period on unexpected challenges for 

compliance with the rule. Acting Chairman Michael Piwowar directed staff to reconsider the 

implementation of the rule based on any comments submitted and to determine as promptly as 

possible whether additional guidance or relief may be appropriate. 

15. Do not implement Equal Employment Opportunity Commission's (EEOC) expanded requirements 

for hours and earnings data on EE0-1 forms. II On August 29, 2017, OMB issued a memo to the 

EEOC announcing a review and immediate stay of the effectiveness of those aspect of the EE0-1 

form that were revised on September 29, 2016.91 

16. Delay compliance dates for the Intentional Adulteration rule required by the Food Safety 

Modernization Act (FSMA). The Department of Health and Human Services, Food and Drug 

Administration (HHS, FDA) should rescind requirements to obtain written assurances from 

downstream customers on an annual basis, or alternatively consider revision of requirement to 

reduce frequency and burden.92 

17. Extend compliance deadline on nutrition labeling standards from 201812019 to 2021. This will 

allow further time for the FDA to further clarify rules93 and definitions regarding "dietary fiber" and 

"added sugar" required by the new label format. II On June 13, 2017, the FDA announced that the 

"This would require a statutory change. 

"This would require a statutory change. 

" See htlps:/lwww.reginfo.gov/publiclisr/Utilities/Review and Stay Memo for EEOC.pdf. 

"The current compliance dates are 3,4 or 5 yea IS after the date of publication of the rule (May 27, 2016), depending on the size of the 

business. Administrative action would be required to effect a delay in the compliance dates for the Intentional Adulteration rule. Although 

FSMA required that FDA promulgate a final rule to protect food against intentional adulteration within 18 months of enactment of FSMA, the 

statute does not appear to specify compliance dates. Delaying compliance would require publishing a final rule; rescinding or revising the 

written assurance provisions would require rulemaking. 

93 The rule was promulgated pursuant to section 403(q) of the Federal Food, Drug, and Cosmetic Act, which requires certain nutrients to be 

included in nutrition labeling and authorizes the Health and Human Services Secretary to require other nutrients to be included if the Secretary 

determines that the information will assist consumers in maintaining healthy dietary practices. 

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compliance dates for the Nutrition Facts Label Final Rules will be extended. The FDA has not 

specified the length of the extension, but will announce new compliance dates in a future Federal 

Register Notices. FDA explained that additional time would provide manufacturers covered by the 

rule with necessary guidance from FDA, and would help them be able to complete and print 

updated nutrition facts panels for their products before they are expected to be in compliance. 

Recommendations 

The Department makes three broad recommendations. 

Agency "Action Plans." Each agency's Regulatory Reform Taskforce (RRTF) should deliver to the 

President no later than December 31, 2017, an "Action Plan" to address the regulatory burden and 

permitting reform issues highlighted in the responses to the RFI. The relevant agencies should review all 

comments received in response to the Department's RFI, and particularly address the issues detailed in the 

section on "Priority Areas for Reform." RRTFs should prioritize a response to these particular items and 

should include in their action plan a description of specific actions that could be taken to lessen the burden 

created by the regulations mentioned in the RFI comments. In the first year, agency leadership should 

update the President regularly on the status of their efforts regarding these tasks. While the "Priority Areas 

for Reform" list is by no means comprehensive, it represents a targeted first step to quickly address the 

problem of over regulation. 

Annual Requlatorv Reduction Forum. The Department recommends creating an annual, open forum for 

regulators and industry stakeholders to evaluate progress in reducing regulatory burdens. There is a longstanding need for consultations with industry to identify specific actions the federal government can take to 

reduce unduly burdensome regulations and accelerate permitting decisions. Industry has repeatedly 

expressed its appreciation of the Trump Administration's regulatory reform effort and the trust it has in the 

Department of Commerce to listen and bring the voice of business to this effort. Because of this, the 

Department of Commerce recommends that it, along with other regulatory agencies, continually evaluate 

progress and re-attack the problem areas. Similar to Kentucky's "Red Tape Reduction Initiative," federal 

agencies should collect, review, and act on recommendations from industry. Input from these annual 

"check-ins" will guide the continuing burden reduction efforts of RRTFs and ensure regulators are moving in 

the right direction while allowing for policy changes as needed. 

Expand the Model Process of FAST-41. The Department recommends further implementation of the 

streamlined permitting process created by "FAST -41."94 The FAST Act contains various provisions aimed 

at streamlining the environmental review process, with improved agency coordination through creation of a 

Coordinated Project Plan and a Permitting Dashboard which serves as a centralized information page for 

pending projects, as well as opportunities to better coordinate with state environmental documentation. 

"Title 41 ofthe Fixing America's Surface Transportation Act of 2015 ("Fast-41", codified at 42 U.S.C. § 4370m) streamlines the Federal 

environmental review and permitting for certain infrastructure projects. FAST -41 created an interagency Federal Pem1itting Improvement 

Steering Council (FPISC); established new procedures for interagency consultation and coordination practices; authorized agencies to collect 

fees to help speed the review and permitting process; and uses the Department of Transportation's "Permitting Dashboard" to track all covered 

projects. 

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The Federal Permitting Improvement Steering Council should consider including projects in an 

"economically significant" category. Those projects resulting in significant, immediate economic benefit to 

the United States should be considered for inclusion under this new category. Consideration should be 

extended to complex funded manufacturing projects that can demonstrate direct and indirect benefits to the 

domestic economy of significant value. To be eligible for the current streamlining process, projects in this 

sector or category would still need to meet the definition of covered project under FAST -41. 

FAST-41 provides a model process that could be incorporated into other Federal legislation that governs 

Federal programs and requirements that apply to manufacturing facilities. To expand further the universe 

of manufacturing projects that benefit from streamlined regulatory approval processes, the Administration 

could work with members of Congress to both expand the definition of "covered project" under FAST-41 

and to incorporate procedures similar to those found in FAST-41 in other legislation applicable to 

manufacturing projects. Expansion of the definition of covered projects to include those which result in 

immediate economic benefit to the United States would help to further goals of expanding the domestic 

economy and lessening permitting burdens for manufacturers seeking domestic expansion of their 

operations. 

Conclusion 

The domestic manufacturing sector and our broader economy are in desperate need of regulatory reforms 

in order to jump- start economic growth and create jobs, innovation and prosperity for all Americans. 

During the process of gathering information related to this report it has become apparent that we must 

make significant progress in improving the way government regulates the manufacturing sector. While 

environmental protections are of critical importance, many regulations are being enforced in a way that is 

limiting the growth of our economy and our global economic leadership, while in some cases regulations 

are providing no meaningful environmental or public health benefits. We believe prudent actions are 

advisable in order to return balance to regulatory procedures. 

The Department believes that the recommendations contained in this report will provide a foundational 

base from which government can begin to approach this monumental task. These recommendations are 

consistent with all ongoing regulatory reform efforts, including those outlined in Executive Orders 1377795 

and 137669 6 Working through their RRTFs, agencies must continue to shape more focused strategies for 

re-forming rules, guidance and policy to address the numerous challenges cited throughout this report. We 

hope that through highlighting these challenges it will become easier for regulatory agencies to clearly see 

contentious areas and work with the regulated community to resolve them in ways that unlock our 

economy's potential and advance the goal of job creation. Agencies must be willing to work with those 

subject to their rules, guidance and policy to find methods to implement existing statutes in ways that are 

less cumbersome and restrictive. 

"EO 13777 (March 1, 2017). 

96 EO 13766 (January 24, 2017). 

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The Department looks forward to partnering with other federal agencies to continue this endeavor in the 

future. We are optimistic that with continued emphasis the federal government can make progress towards 

these goals. 

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Appendix 

Abbreviations Used in References to RFI Responses 

RFI# Abbreviation Respondent 

6 NFIB Nat'l Federation of Independent Business 

10 PCB I Pennsylvania Chamber of Business and Industry 

14 Chromaflo Chromaflo Technologies 

37 ILMA Independent Lubricant Manufacturers Association 

39 IPC Association Connecting Electronics Industries 

42 Nove lis Novelis 

43 Mosaic Mosaic Fertilizer 

46 An AT & T Services 

48 AF NSR Program paper: Art Frass, John Graham, Jeff Holmstead 

51 NSSGA National Stone, Sand and Gravel Association 

53 ACMA American Composites Manufacturers Association 

56 CPA Composite Panel Association 

63 CRN Council for Responsible Nutrition 

64 TFI The Fertilizer Institute 

66 ARTBA American Road and Transportation Builders Association 

67 AHFA Am. Home Furnishings Alliance, Kitchen Cabinet Inti. Assoc., Inti Wood 

Prods Assocs., Rec. Vehicle Ind. Assoc., Natl Retail Federation, Retail 

Industry Leaders Assoc. 

69 Domtar Domtar- Nekoosa Mill 

70 GMA Grocery Manufacturers Association 

71 Whirlpool Whirlpool 

74 Knouse Knouse Foods Cooperative Inc. 

75 SLMA Southeastern Lumber Manufacturers Association 

76 Boeing Boeing 

77 CIRT Construction Industry Roundtable 

79 Northrup Grumman Northrop Grumman Corporation 

83 TM Twin Metals 

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RFI# Abbreviation Respondent 

84 Ameren Ameren Corp 

85 NOPA National Oilseed Processors Association 

86 IPAA Independent Petroleum Association of America 

89 IECA Industrial Energy Consumers of America 

92 A lSI American Iron and Steel Institute 

96 NMA National Mining Association 

98 IDFA International Dairy Foods Association 

100 ACA American Coatings Association 

101 AA Aluminum Association 

102 Renfro Renfro 

106 AFS American Foundry Society 

107 coc US Chamber of Commerce 

109 Valero Valero Companies 

110 Freeport Freeport-McMoRan 

111 GAC Graphic Arts Coalition 

112 SMA Steel Manufacturers Association; Specialty Steel Industry of North 

America 

114 AGC Associated General Contractors of America 

115 HSIA Halogenated Solvents Industry Alliance 

116 HAFO National Alliance of Forest Owners 

119 AGC Associated General Contractors of America 

120 NTMA/PMA National Tooling and Machining Association; Precision Metalforming 

Association 

122 AHPA American Herbal Products Association 

123 3M 3M 

125 BP BPAmerica 

126 API American Petroleum Institute 

127 PCA Portland Cement Association 

128 Pugh Theresa Pugh Consulting 

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RFI# Abbreviation Respondent 

131 NMMA National Marine Manufacturers Association 

133 PIA Plastics Industry Association 

136 AFPM American Fuel & Petrochemical Manufacturers 

137 MEMA Motor & Equipment Manufacturers Association 

141 ACC American Chemistry Council- Chemical Products and Technology Division 

144 AFPA American Forest & Paper Association 

146 NAM National Association of Manufacturers 

147 US Steel United States Steel Corporation 

148 TSGTA Tri-State Generation and Transmission Association 

151 PESA Petroleum Equipment and Services Association 

152 AWC American Wood Council 

155 PMPA Precision Machined Products Association 

158 CKRC Cement Kiln Recycling Coalition 

159 VI The Vinyl Institute 

160 TCC Troy Chemical Corporation 

170 APF Air Permitting Forum 

172 VI The Vinyl Institute 

Note: The number associated with the respondents are the RFI ID# and can be used to access the 

responses, see Docket ID "DOC-2017-0001" at www.requlations.gov. 

A complete list of respondents can be found at: https://www.commerce.gov/reducingburden 

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U.S. E ron me IP on Agency 

that Potentially Burden 

the Safe, Efficient of Domestic Energy Resources 

Under Executive Order 13783 

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Environmental Protection Agency 

Final Report on Review of Agency Actions that Potentially Burden the Safe, Efficient 

Development of Domestic Energy Resources Under Executive Order 13783 

Executive Summary 

On March 28, 2017, President Trump signed Executive Order 13783, Promoting Energy 

Independence and Economic Growth. The Executive Order establishes a national policy to promote 

the clean and safe development of domestic energy resources while avoiding unnecessary regulatory 

burdens. It directs federal agencies to "review all existing regulations, orders, guidance documents, 

policies, and any other similar agency actions (collectively, "agency actions") that potentially burden 

the development or use of domestically produced energy resources[.]" 1 The Executive Order also 

orders the U.S. Environmental Protection Agency (EPA) to review specific rules. As part of E.O. 

13783, agencies are to develop a report detailing this review that includes recommendations for 

reducing unnecessary regulatory burdens. 

Through implementation of environmental statutes such as the Clean Air Act and Clean Water Act, 

EPA promulgates regulations that may affect domestic energy use and resources. Under 

Administrator E. Scott Pruitt's leadership, EPA is working to fulfill its critical mission while ensuring 

regulations are consistent with underlying laws and policies. Implementation of E.O. 13783 and 

other presidential directives related to regulatory reform plays an important role in this effort. 

In order to identify priority areas and specific regulations for potential repeal, replacement, or 

modification pursuant to E.O. 13783, EPA has coordinated its review with other Administration 

initiatives, such as the Presidential Memorandum on Streamlining Permitting and Reducing 

Regulatory Burdens for Domestic Manufacturing, 2 and E.O. 13777 on Enforcing the Regulatory 

Reform Agenda. 3 Notably, Administrator Pruitt established a Regulatory Reform Task Force 

(RRTF) pursuant to E.O. 13777, which has also served to lead implementation of the Section 2 review 

required under E.O. 13783. 4 

EPA issued a request for public comments to inform the RRTF on April 11, 20175 As a result of 

this outreach, EPA received over 460,000 public comments, including a record-breaking number of 

63,346 individual responses. Additionally, EPA program offices conducted nearly a dozen public 

1 82 fed. Reg. 16093 (Mar. 28. 2017). 2 82 Fed. Reg. 8667 (Jan. 30, 2017). 1 82 Fed. Reg. 12285 (Mar. 1. 20 17). 4 Memorandum from E. Scott Pruitt, Adm'r, U.S. Envtl Protection Agency. to Acting Deputy Adm'r, U.S. Envtl 

Protection Agency (Apr. 19. 20 17) available at https://epa.gov/laws-regulations/epa-implcmcntation-executive-order13 7 83-promoti ng-energy-independencc-and-eco nomic 5 EPA-HQ-OA-2017-0 190 available at https://www.regulations.gov/document?D~EPA-HQ-OA-20 17-0190-0001. 

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meetings in April and May to hear directly from stakeholders on EPA regulations and opportunities 

for reform6 

Many of the public comments centered on specific rulemakings and/or specific prov1s1ons of 

rulemakings that may unduly burden domestic energy production and use. Through this robust public 

feedback, the RRTF identified recurrent themes regarding EPA's energy-related regulations. These 

general themes included a need for streamlining complex permitting programs, restoring EPA's coregulatory relationship with the states, increasing transparency pertaining to the economic impact of 

agency actions, and enhancing EPA's understanding of the entities it regulates. 

In an effort to meet the requirements ofE.O. 13783, EPA identified four key initiatives that it believes 

will further the goal of reducing unnecessary burdens on the development and use of domestic energy 

resources. These initiatives include: (I) comprehensive New Source Review reform, (2) National 

Ambient Air Quality Standards (NAAQS) reform, (3) robust evaluations of the employment effects 

of EPA regulations, and (4) a sector-based outreach program. Furthermore, the appendix of this 

report includes summaries of actions that EPA has already taken on rules identified for review, either 

specifically or generally, in E.O. 13783. Together, these efforts will help advance the 

Administrator's vision for EPA while fulfilling the President's goal of promoting domestic energy 

production and use. 

I. New Source Review Reform 

The Clean Air Act (CAA) establishes a number of permitting programs designed to reduce air 

pollution, primarily through the use of pollution control technology. New Source Review (NSR) is 

a preconstruct ion permitting program intended to ensure that new and modified stationary sources of 

air pollution do not significantly degrade air quality. NSR permits are legal documents that establish 

site-specific requirements that facility owners/operators must observe. The permit specifies what 

constmction is allowed, what emission limits must be met, and often how the emissions source may 

be operated. There are three types ofNSR permits: (I) Prevention of Significant Deterioration (PSD) 

permits (CAA Title I, Part C), which are required for new major sources or a major source making a 

major modification in an area that is in attainment with NAAQS air-quality standards; (2) 

Nonattainment NSR (NNSR) permits (CAA Title I, Part D), which are required for new major 

sources or major sources making a major modification in a nonattainment area; and (3) Minor source 

permits (CAA § IIO(a)(2)(C)). 

The potential costs, complexity, and delays that may arise from the NSR permitting process can slow 

the construction of domestic energy exploration, production, or transmission facilities that must 

undergo review. In some circumstances, the NSR process discourages the construction of new 

6 See https://www.epa.gov/laws-regulations/regulatory-reform#Puhlic. 

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facilities or modifications of existing ones that could result in greater environmental improvements. 

Such reactions to the NSR process slows the growth of domestic energy resources and raise energy 

costs, among other impacts. 

Numerous public comments in response to the request for comments on E.O. 13777, and the 

Presidential Memorandum on Streamlining Permitting, raised concerns with the NSR program's 

impact on domestic energy resources. Commenters noted that the NSR permitting process is unduly 

lengthy and complex. Commenters further stated that the NSR application and construction costs 

are exceedingly high, to the point of discouraging industry from modernizing facilities for fear of 

triggering NSR obligations. 

Several commenters suggested that EPA should defer to state decisions on the applicability ofNSR 

requirements and other source-specific permitting decisions. Commenters also raised concerns about 

the availability and cost of emissions offsets in nonattainment areas, and about whether costs will 

increase as various NAAQS are revised. 

Commenters recommended reforms to allow the purchase of offsets from outside a nonattainment 

area, and inter-pollutant trading. Commenters also urged EPA to better promote and facilitate use of 

Plant-wide Applicability Limitations, which generally can allow domestic energy production 

facilities to modifY equipment and operations without concerns of triggering NSR requirements. 

Finally, recommendations included reviewing the debottlenecking rule and re-proposing it to address 

NSR requirements for modifying sources. 

The above comments represent just some of the issues raised in public comments related to NSR. 

Accordingly, EPA believes opportunities exist to simplify the NSR application and permit process; 

to review ways to reduce the length of the permitting process; to review burdens created by the 

current emissions offsets structure; to improve relationships with the states; and to review the "once 

in, always in" policy to clarify the means by which a facility currently classified as a major source 

can become an area source. 

To address these important areas and achieve meaningful NSR refor1n, Administrator Pruitt intends 

to convene an NSR Reform Task Force, details of which will be announced in a forthcoming agency 

memorandum. 

II. National Ambient Air Quality Standards (NAAQS) Reform 

Pursuant to the CAA, EPA sets NAAQS for six criteria pollutants: ozone, nitrogen dioxide (NOz), 

sulfur dioxide (S02), particulate matter (PMw and PM2 s), carbon monoxide (CO), and lead. In 

setting the NAAQS, EPA establishes primary standards to protect public health and secondary 

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standards to protect public welfare. EPA must review and, if appropriate, revise each NAAQS every 

five years. 

After EPA sets a new NAAQS or revises an existing standard for each criteria air pollutant, the CAA 

requires EPA to determine if areas meet the new standard. Based on monitoring data or modeling, 

states and tribes submit recommendations to EPA on whether an area meets NAAQS for a criteria 

pollutant. After reviewing the recommendations and the available information, EPA "designates" an 

area as attainment or nonattainment (or unclassifiable) for the standard. States develop State 

Implementation Plans (SIPs) demonstrating that the state has the basic required elements of an air 

quality program (so-called "infrastructure SIPs" or ''i-SIPs") and identifying emissions control 

requirements the state will rely upon to attain and/or maintain the primary and secondary NAAQS 

("attainment" and "maintenance'' SIPs). 

NAAQS requirements, and revision of the NAAQS standards, have the potential to impact all 

facilities that emit a NAAQS pollutant or its precursor substances, including those facilities that 

generate energy from, oil, and natural gas. These facilities can be impacted whether they are in 

attainment areas or nonattainment areas. As a result, facilities face burdens including higher costs, 

greater uncertainties in making future plans, and a potential facility closure that not only impacts 

employment, but also affects communities that rely on the facility. 

In response to EPA's request for comments on E.O. 13777, commenters raised concerns with the 

stringency of some NAAQS, as well as the short review time between revisions. Each new or revised 

NAAQS requires a host of rules, guidance, and technical support documents for use by state, local, 

and tribal regulators, as well as industry. The increased frequency of NAAQS revisions results in 

overlapping requirements that must be implemented in short time spans. Planned and permitted 

facilities are subject to significant uncertainty, making it difficult to anticipate future air quality 

improvement requirements and restricting economic growth. Frequent NAAQS revisions may 

further require that states modify their SIPs before previous standards can be fully implemented, and 

can also result in permitting delays for new facilities as new air quality assessments are conducted. 

Other comments focused on NAAQS implementation issues. Commenters requested that EPA 

develop implementation guidance that corresponds with NAAQS rulemaking in a timely manner. 

They recommended that implementation guidance and the various other regulatory and analytic tools 

be available and final at the time the new or revised NAAQS are promulgated, and not years later, as 

has repeatedly occurred in recent years. Moreover, uncertainty and delays in guidance and 

implementation requirements may needlessly obstruct energy expansion and modernization of 

existing facilities. 

Concerns were further expressed regarding the unnecessary burden arising from the development and 

revision of SIPs, and the chronic backlog of federal SIP approvals. At the end of fiscal year 2016, 

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EPA had a backlog of322 SIPs. 7 Commenters noted that many state SIP submittals remain without 

EPA action for years, and that the process for developing, submitting and approving SIPs is 

inefticient and outdated. Commenters also noted that EPA will second-guess state permitting 

decisions, affecting state control of the process and introducing delays and financial risks for 

companies seeking permits. Comments further recommended EPA defer to state authorities for 

source-specific decisions and, therefore, readjust its focus to overarching guidance and policy. 

Commenters additionally questioned specific NAAQS - particularly the 2015 ozone standard 

which approach background concentrations in some regions. Other commcnters articulated concerns 

regarding monitoring and modeling issues, international and long-range ozone transport, 

stratospheric ozone intrusions, and exceptional events. 

EPA received recommendations to revise the exceptional events rule and associated guidance to 

allow for greater state flexibility in flagging and excluding exceptional events in the data set used to 

determine compliance with NAAQS. Exceptional events are unusual or naturally occurring actions 

that can affect air quality, but are not reasonably controllable using techniques that may be 

implemented to attain and maintain NAAQS. Exceptional events include wildfires, stratospheric 

ozone intrusions, and volcanic and seismic activities. 

To review the issues related to the ozone NAAQS, the Administrator formed the Ozone Cooperative 

Compliance Task Force. Among its priorities, the Task Force is reviewing administrative options to 

enable states to enter into cooperative agreements with EPA to provide regulatory relief and 

meaningfully improve ozone air quality. Moreover, EPA plans to work to streamline SIP approvals 

through a nationally consistent process that includes setting performance targets, and better 

monitoring progress on SIP reviews. EPA further plans to work to eliminate the SIP backlog. 

III. Employment Evaluations 

Regulatory costs impose tremendous burdens on American businesses, employees, and consumers 

particularly within the energy sector. In its 2015 Report to Congress on the Benefits and Costs of 

Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act, the Office 

of Management and Budget estimated that the total annual cost of EPA regulations from October I, 

2004 through September 30, 2014 stood between $37.6 and $45.4 billion (20 I 0$). 8 These costs may 

impact business development and expansion, as well as capital investment and employment patterns. 

7 Fiscal Year 2018 Justification of Appropriation Estimates for the Committee on Appropriations, U.S. ENVTL 

PROTECTION AGENCY, EPA-190-K-17-002 (May 20 17) available at https://www.epa.gov/sites/production/liles/2017-

06/documents/fy 18-cj-14-program-pcrformance.pdf 8 OFFICE Of MGMT. & BUDGET, EXEC. OFFICE OF THE PRESlDENT, 2015 Report to Congress on the Benefits and Costs 

of Federal Regulations and Agency Compliance with the Unfunded i.Iandates Reform Act (2015). available at 

https ://obamawhitehouse.archi ves. gov /sites/defau lt/ti lcs/om b/inforeg/20 15 _ cb/20 15-cost-benelit-report.pdf. 

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In the CAA, 9 the Clean Water Act, 10 the Toxic Substance and Control Act, 11 Solid Waste Disposal 

Act, 12 and the Comprehensive Environmental Response, Compensation, and Liability Act, 13 

Congress expressed its intent that EPA conduct continuing evaluations of potential losses or shifts of 

employment that may result from implementation of these statutes. 14 However, the Agency 

historically has not conducted these assessments. EPA acknowledges the importance of considering 

the cumulative effects of its regulations on the American public. Accordingly, EPA intends to 

conduct these evaluations consistent with the statutes. 

IV. Smart Sectors 

To accomplish the goals of E.O. 13783. EPA acknowledges that it must work to develop better 

relationships with the regulated community to close information gaps through informal means. 

Engaging these stakeholders in a collaborative manner to understand technological advancements or 

to coordinate on regulatory developments could reduce conflicts that complicate the rulemaking 

process. 

Accordingly, EPA recently announced its Smart Sectors program to re-examine how it engages with 

industry to reduce unnecessary regulatory burdens, improve regulatory forecasting and predictability, 

and improve the ability of both EPA and industry to conduct long-term regulatory planning while 

also improving the environment and public health. 15 EPA initially identified thirteen sectors to work 

with, including ones directly related to oil and gas, utilities, mining, power generation, and the 

automotive industry. 

The Smart Sectors program designates staff-level points of contact who are highly knowledgeable 

about specific industries. These individuals will act as liaisons among industry trade associations 

and companies, EPA program and regional offices, state and local governments, and other 

stakeholder groups. The sector liaisons will focus their attention on three main areas: building 

relationships and improving customer service to sectors; developing additional expertise in each 

industry's operations and environmental performance; and informing the planning of future policy, 

regulations, and Agency processes. 

EPA anticipates that participating industries will benefit from coordinated, cooperative, and 

constructive problem-solving with government. The Agency will invite participating industries to 

9 42 U.S.C.§762l. 10 33 u.s.c. §!367. 

II 15 U.S.C. §2622. 12 42 U.S.C. §7001(e). 13 42 u.s.c. §9610. 14 42 U.S.C. §762l(a); 33 USC §1367(e); 42 U.S.C. §700142 U.S.C. §96lO(c). 15 See https:/1\vww.epa.gov/smalisectors. 

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engage in active dialogue and offer their own innovative ideas to reduce environmental impacts. 

Beginning in January 2018, EPA plans to release monthly updates on its Smart Sectors website with 

data and other information. 

Conclusion 

Multiple ways exist for EPA to protect the environment and public health while supporting the 

President's policy to promote economic growth and energy independence. The four key initiatives 

identified herein will advance the goal of reducing unnecessary regulatory burdens on the 

development and use of domestic energy resources in accordance with E.O. 13 783. These initiatives 

also illustrate meaningful progress towards fulfilling Administrator Pruitt's efforts to satisfy EPA's 

core mission through increased transparency, public participation, and cooperative federalism. 

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APPENDIX 

This appendix includes summaries oflhe actions that EPA has taken on (I) rules that were identified 

specifically for review in E.O. 13783; and (2) other energy-related rules identified for review by EPA 

pursuant to E.O. 13783. 

I. Rules Identified Specifically in E.O. 13783 

A. Clean Power Plan and Related Rules 

E.O. 13783 Section 4 addresses the Clean Power Plan and related rules that affect the electric utility 

sector, particularly utilities' fossil fuel-fired power plants i.e., primarily coal and natural gas. EPA 

initiated a review of the two identified final rules and withdrew a proposed rule. 

1. Carbon Emission Guidelines for Existing Stationary Sources (Clean Power Plan) 

On October 23, 2015, EPA issued a final rule, "Carbon Pollution Emission Guidelines for Existing 

Stationary Sources: Electric Utility Generating Units" (Clean Power Plan or CPP). 16 This rule 

established the first-ever standards for states to follow in developing plans to reduce greenhouse gas 

(GHG) emissions from existing fossil fuel-fired electric generating units (EGUs). Affected domestic 

energy resources include oil, natural gas, and coal. 

On February 9, 2016, the U.S. Supreme Court issued an unprecedented stay of the CPP 

implementation pending judicial review. 17 Following a full briefing on the merits, oral argument 

was held before the D.C. Circuit, sitting en bane, on September 27, 2016. The case is currently 

pending in the D.C. Circuit. 

Pursuant to E.O. 13783, on March 28, 2017, Administrator Pruitt signed a notice to review this final 

rule. 18 On March 28, 2017, the Department of Justice requested that the D.C. Circuit hold in 

abeyance the litigation regarding the CPP. On April28, 2017, the D.C. Circuit ordered the litigation 

regarding the CPP be held in abeyance for 60 days. 19 On May 15, 2017, the Department of J usticc 

submitted a supplemental brief to the Court urging the Court to continue to hold the cases in abeyance 

while EPA conducts its review of the CPP. 20 On June 6, 2017, EPA submitted a CPP proposal to 

OMB. 21 On August 8, 2017, the D.C. Circuit ordered litigation be held in abeyance for an additional 

16 80 Fed. Reg. 64661 (Oct. 23, 2015). 17 West Virginia v. EPA, U.S., No. 15A773 (Feb. 9, 2016). 18 82 Fed. Reg. 16329 (Apr. 4, 2017). 19 West Virginia v. EPA, D.C. Cir. en bane, No. 1673071 (Apr. 28, 2017). 20 West Virginiav. EPA, D.C. Cir. en bane. No, 1675243 (May 15, 2017). 21 https://www.rcginro.gov/ 

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60 days. 22 On October 10, 2017, Administrator Pruitt signed a Notice of Proposed Rulemaking 

proposing to repeal the CPPY The public comment period closes on December 15, 2017. On 

October I 0, 2017, EPA also submitted an advanced notice of proposed rulcmaking, State Guidelines 

for Greenhouse Gas Emissions from Existing Electric Utility Generating Units, to OMB24 

2. Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources 

On October 23, 2015, EPA issued a final rule, "Standards of Performance for Greenhouse Gas 

Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating 

Units."25 This rule established standards for emissions of carbon dioxide (C02) for newly 

constructed, modified, and reconstructed affected fossil fuel-fired EGUs. Affected domestic energy 

resources include oil, natural gas, and coal. 

Pursuant to E.O. 13783, on March 28, 2017, Administrator Pruitt signed a notice to review the final 

rule. 26 On March 28, 2017, the Department of Justice requested that the D.C. Circuit hold in 

abeyance the litigation regarding the rule, including the scheduled April 17,2017, oral arguments. 27 

On March 30,2017, the D.C. Circuit granted the request to hold the litigation in abeyance. 28 

3. Federal Plan/Model Trading/Framework Rule 

On October 23, 2015, in connection with the CPP, EPA published a proposed rule, "Federal Plan 

Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on 

or Before January 8, 20 14; Model Trading Rules; Amendments to Framework Regulations; Proposed 

Rule." 29 This rule proposed (I) a Federal plan to implement the CPP emission guidelines, (2) model 

trading rules to aid implementation of the guidelines, and (3) amendments to the existing framework 

regulations implementing CAA §Ill (d). Affected domestic energy resources include oil, natural 

gas, and coal. 

Pursuant to E.O. 13783, on March 28, 2017, Administrator Pruitt signed a notice withdrawing these 

proposed rules. 30 The notice also included the withdrawal ofthe proposed design details of the Clean 

Energy Incentive Program (CEIP) under the CPP. 31 

02 West Virginia v. EPA, D.C. Cir. en bane, No. 1687838 (Aug. 8. 2017). 23 80 Fed. Reg. 48035 (Oct. 16, 2017). 

"https://www.reginfo.gov/ 

25 80 Fed. Reg. 64509 (Oct. 23, 2015). 

26 82 Fed. Reg. 16330 (Apr. 4, 2017). 27 North Dakota v. EPA, D.C. Cir., No. 1668276 (Mar. 28, 2017). 28 North Dakota v. EPA. D.C. Cir., No. 1668612 (Mar. 30, 2017). 29 80 Fed. Reg. 64966 (Oct. 23, 2015). 30 82 Fed. Reg. 16141 (April3, 2017). 31 81 Fed. Reg. 42940 (June 30, 2016). 

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B. Methane Emissions Standards for Oil and Natural Gas Sector 

On June 3, 2016, EPA issued a final rule, ''Oil and Natural Gas Sector: Emission Standards for New, 

Reconstructed, and Modified Sources."32 This rule included amendments to the existing standards 

for the oil and natural gas source category (subpart 0000) and set first-time standards for both 

GHGs (specifically methane) and volatile organic compounds (VOC) (subpart OOOOa). 

Pursuant to E.O. 13783, on March 28, 2017, Administrator Pruitt signed a notice to review the final 

ruleY On April 7, 2017, the Department of Justice requested that the D.C. Circuit hold in abeyance 

the litigation regarding the oil and ga'i methane rule, including the scheduled oral arguments. 34 On 

May 18,2017, the D.C. Circuit granted the request to hold the litigation in abeyance until EPA has 

completed its review and reconsideration ofthe 2016 rule. 35 

On April 18, 2017, Administrator Pruitt signed a letter that announced EPA's intent to convene a 

proceeding for reconsideration of the following objections relative to the fugitive emissions 

requirements: (I) the applicability of the fugitive emissions requirements to low production well 

sites, and (2) the process and criteria for requesting and receiving approval for the use of an 

alternative means of emission limitations (AMEL) for purposes of compliance with the fugitive 

emissions requirements in the 2016 rule. 36 On May 26,2017, Administrator Pruitt signed a notice 

of reconsideration related to (!) the requirements for certification of closed vent system by a 

professional engineer, and (2) the well site pneumatic pump standards, and a partial stay of the rule 

requirements pending reconsideration. 37 

On June 12, 2017, Administrator Pruitt signed a proposed rulemaking for a three-month stay38 and a 

separate notice proposing a two-year stay. 39 EPA currently has supplemental notices to these 

proposals under OMB interagency review. 40-

4 ' 

II. Other Energy-Related Rnles Identified by EPA 

32 81 Fed. Reg. 35824 (June 3. 2016). 33 82 Fed. Reg. 16331 (Apr. 4, 2017). 34 API v. EPA. No. 13-1108 (and consolidated cases), D.C. Cir., No. 1670157 (Apr, 7. 2017). 35 API v. EPA. No. 13-1108 (and consolidated cases), D.C. Cir .. No. 1675813 (May 18, 2017). 16 EPA Administrator E. Scott Pruitt. letter to API et al. (Apr. 18, 2017). 37 82 Fed. Reg. 25734 (June 5, 2017). Note that the D.C. Circuit vacated the 90 day stay on July 3, 2017. The court 

also emphasized that nothing in its opinion limits EPA's authority to reconsider the oil and gas standards and to 

proceed \Vith its June 16. 2017 proposed two-year stays of certain requirements in the rule. 38 82 red. Reg. 27641 (June I 6, 20 17). 39 82 Fed. Reg. 27645 (June 16, 2017). 40 https://www.reginfo.gov/ 41 https://www.reginfo.gov/ 

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As noted previously, the Administration has initiated several regulatory reform efforts, allowing EPA 

to leverage the ideas and information collected from those efforts to support and focus its activities 

to alleviate unnecessary burdens on the domestic energy sector. Public input has been received in 

response to both the Department of Commerce's request for information (RFI) regarding the 

Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic 

Manufacturing, 42 and EPA's request for comment pursuant to E.O. 13777 in order to identify 

regulations that may be appropriate for repeal, replacement, or modification. EPA has screened each 

docket for comments with substantive, specific suggestions to remove regulatory burdens on the 

development or use of domestic energy resources. As part of this effort, the RRTF has identified the 

following additional energy-related actions EPA has taken: 

A. Oil and Gas Information Collection Request 

On November 10, 2016, EPA sent an information collection request (ICR) to more than 15,000 

owners and operators in the oil and gas industry, requiring them to provide information on equipment 

inventories and methane emissions. This ICR conducted pursuant to CAA § 114 was to assist the 

Agency in developing emissions standards for existing oil and gas facilities pursuant to CAA 

§111(d).43 

On March 2, 2017, Administrator Pruitt withdrew the ICR. 44 The withdrawal will allow EPA to 

assess the need for the information that the Agency was collecting through these requests, and reduce 

burdens on businesses while the Agency assesses such need. EPA estimated the burden of the 

information collection to be 284,751 hours, costing $42,453,050. Due to some facilities submitting 

responses to the ICR prior to the withdrawal, EPA estimated that the withdrawal saved approximately 

$37 million in reporting burden. Affected domestic energy resources include oil and natural gas. 

B. Mid-Term Evaluation for Light-Duty Vehicle Greenhouse Gas Emissions Standards 

In 2012, EPA and the Department of Transportation's National Highway Traffic Safety 

Administration (NHTSA) set GHG emissions and Corporate Average Fuel Economy (CAFE) 

standards for model year (MY) 2017 and beyond for light-duty vehicles.45 The 20 12joint rulemaking 

included a regulatory requirement for EPA to conduct a Mid-Term Evaluation (MTE) of the GHG 

standards established for MY 2022-2025 to assess whether the standards were appropriate no later 

42 The RFI resulted in 170 commenL'>. Most EPA-relevant comments focused on air permitting programs (e.g. NSR, 

Title V. SSM, etc.). 43 EPA ICR No. 2548.01. 

"82 Fed. Reg. 12817 (Mar. 7, 2017). 45 77 Fed. Reg. 62624 (Oct. 15, 2012). 

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than April!, 2018. On January 12,2017, EPA issued, "Final Determination on the Appropriateness 

of the Model Year 2022-2025 Light-duty Vehicle Greenhouse Gas Emissions Standards under the 

Midterm Evaluation.''46 This action determined that the GHG emission standards for MY 2022-2025 

light-duty vehicles were appropriate. 

On March 15, 2017, Administrator Pruitt and Department of Transportation Secretary Elaine Chao 

announced that they intended to reconsider the final determination in order to allow for additional 

consultation and coordination, to ensure that the record is based on the best available data, and 

consistent with the schedule prescribed by the 2012 regulation. A formal notice of reconsideration 

was published in the Federal Register on March 22, 2017. 47 On August 21, 2017, EPA and DOT 

issued a request for public comment on its reconsideration of the Final Determination and invited 

stakeholders to provide any relevant comments, data, and information to inform the 

reconsideration. 48 

In accordance with the schedule set forth in EPA's regulations, the Agency intends to make a new 

Final Determination regarding the appropriateness of the MY 2022-2025 Light-duty Vehicle GHG 

Emissions Standards no later than April I, 2018. 

C. Steam Electric Effluent Limitations Guidelines 

On November 3, 2015, EPA issued a final rule "Effluent Limitations Guidelines and Standards for 

the Steam Electric Power Generating Point Source Category."49 This rule contained limitations and 

standards on various wastestreams at steam electric power plants: fly ash transport water, bottom ash 

transport water, tlue gas mercury control wastewater, flue gas desu lfurization (FGD) wastewater, 

gasification wastewater, and combustion residual leachate. This action affects domestic coal 

resources. 

EPA received seven petitions for review of the 2015 Steam Electric ELG rule. On December 8, 

2015, the United States Judicial Panel on Multi-District Litigation issued an order consolidating all 

of the petitions in the U.S. Court of Appeals for the Fifth Circuit. 50 

On April II, 2017, the Administrator sent a letter to each state governor notifying them of the 

Agency's intent to consider postponing compliance dates as well as petitions for reconsideration of 

the final rule. 51 On April 12, 2017, the Administrator announced EPA's decision to reconsider the 

46 81 Fed. Reg. 87927 (Jan. 12, 2017). 47 82 Fed. Reg. 14671 (Mar. 22, 2017). 48 82 Fed. Reg. 39551 (Aug. 21, 2017). 

'"80 Fed. Reg. 67838 (Nov. 3, 2015). 50 Sowhweslern Eleclric Power Co .. eta/. v. EPA, 5th Citr. (Dec. 8, 2015). 51 EPA Administrator E. Scott Pruitt, letter to Virginia Governor Terry McAulifte (Apr. 11, 2017). 

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final rule and, using authority under the Administrative Procedure Act §705, to postpone compliance 

dates that have not yet passed pending judicial review. ~ On September 18, 2017, EPA issued a final 

rule postponing compliance deadlines relating to FGD wastewater and bottom ash transport water 

from November I, 2018, to November I, 2020, while the Agency reconsiders those wastestreams in 

the 2015 rule. 53 

D. Coal Combustion Residuals 

On April 17, 2015, EPA issued a final rule, "Hazardous and Solid Waste Management System; 

Disposal of Coal Combustion Residuals From Electric Utilities; Final Rule." 54 This rule establishes 

minimum national criteria under subtitleD of the Resource Conservation and Recovery Act (RCRA) 

for Coal Combustion Residuals (CCR) landfills and surface impoundments at active coal-fired power 

plants. This action affects domestic coal resources. 

Subsequent to the promulgation of the 2015 CCR rule, various environmental and industry groups 

submitted to the D.C. Circuit seven separate petitions for review, which have been consolidated into 

a single action. On June 14, 2016, the D.C. Circuit remanded with vacatur to EPA specific provisions 

of the rule for further consideration. 55 EPA is planning to issue a proposal to address those rule 

provisions by the end of 2017. 56 

On December 16, 2016, the President signed the Water Infrastructure Improvements for the Nation 

(WIIN) Act, 57 which included language giving state agencies the authority to implement and enforce 

coal ash regulations under the 2015 CCR Final rule through EPA-approved state permit programs. 

The WIIN Act also gives EPA the authority to regulate coal ash in states that choose not to implement 

state permitting programs and in states whose permitting programs are determined to be inadequate 

by EPA. EPA has direct implementing authority in Indian country. 

On April 28, 2017, Administrator E. Scott Pruitt sent letters informing states that EPA was working 

on guidance for implementing state permitting programs under WIIN that allow flexibility in 

individual permits to manage the safe disposal of CCR. On August 15, 2017, EPA issued Interim 

Final Guidance for State CCR Permit Programs. 5

8 On September 14,2017, EPA announced its intent 

52 82 Fed. Reg. 19005 (Apr. 25, 2017). 53 82 Fed. Reg. 43494 (Sept. 18. 2017). 54 80 Fed. Reg. 21302 (Apr. 17, 2015). 55 Utility Solid Waste Activities Group v. EPA, D.C. Cir. (June 14. 2016). 56 https://wv.w .regi nfo .gov /pu bl ic/do/eA genda ViewRulc?publ d~20 1704&RIN=20 50-A G88. 57 P.L. 114-322. 

"82 Fed. Reg. 38685 (Aug. 15. 2017). 

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to reconsider several substantive provisions of the rule, as part of its rulemaking pursuant to the D.C. 

Circuit remand. 59 

E. Waters of the United States 

On June 29, 2015, EPA issued a final rule, "Clean Water Rule: Definition of 'Waters of the United 

States"' (WOTUS). 60 The WOTUS rule is a definitional rule that affects the scope of the "waters of 

the United States;" it does not establish any regulatory requirements or directly mandate actions on 

its own. However, by changing the definition of the "waters of the United States," the rule changes 

the waters where other regulatory requirements that affect regulated entities come into play (i.e., the 

locations where regulated entities would be required to obtain certain types of permits). As a result, 

this action would have had wide-ranging effects on domestic energy production and use, including 

the permitting of oil, gas, coal, and renewable development sites, and the transmission and 

distribution of electricity. 

Due to concerns about the potential for regulatory uncertainty, as well as the scope and legal authority 

of the 2015 WOTUS rule, 31 states and a number of other parties sought judicial review in multiple 

actions. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 WOTUS 

rule nationwide pending further action of the court. 61 

On February 28,2017, President Trump signed E.O. 13778- Restoring the Rule of Law, Federalism, 

and Economic Growth by Reviewing the "Waters of the United States" Rule, which directed EPA 

and the U.S. Army Corp of Engineers to review the 2015 WOTUS rule. 62 

On June 27, 2017. EPA and the Army Corps signed a proposed rulemaking to repeal the 2015 

WOTUS rule. 63 As indicated in the proposed withdrawal, the agencies are implementing E.O. 13 778 

in two steps to provide as much certainty as possible as quickly as possible to the regulated 

community and the public during the development of the ultimate replacement rule. In Step I, the 

agencies are taking action to establish the legal status quo in the Code of Federal Regulations, by recodifying the regulation that was in place prior to issuance of the 2015 rule. In Step 2, the agencies 

plan to propose a new definition that would replace the approach in the 2015 rule. 

EPA has initiated programmatic staff workgroups to recodify the regulation that was in place prior 

to the 2015 WOTUS rule and consider a new definition that would replace the approach in the 

59 EPA Press Release, "EPA to Reconsider Certain Coal Ash Rule Provisions" (Sept. 14, 2017). 60 80 Fed. Reg. 37054 (June 29, 2015). 61 Ohio v. U.S Army Corps of Eng 'rs., 6th Cir. (Oct. 9. 2015). 62 82 Fed. Reg. 12497 (Mar. 3, 2017). 63 82 Fed. Reg. 34899 (July 27, 2017) (NPRM). 

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WOTUS rule with one that reflects the principles that Justice Scalia outlines in the Rapanos plurality 

opinion. 

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