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H.R. ———, THE PROMOTING NEW 

MANUFACTURING ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MAY 21, 2014 

Serial No. 113–147 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

SUBCOMMITTEE ON ENERGY AND POWER

ED WHITFIELD, Kentucky 

Chairman 

STEVE SCALISE, Louisiana 

Vice Chairman 

RALPH M. HALL, Texas 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

LEE TERRY, Nebraska 

MICHAEL C. BURGESS, Texas 

ROBERT E. LATTA, Ohio 

BILL CASSIDY, Louisiana 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JERRY MCNERNEY, California 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN D. DINGELL, Michigan (ex officio) 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 1 

Prepared statement .......................................................................................... 2 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 10 

Hon. Jerry McNerney, a Representative in Congress from the State of California, opening statement .................................................................................... 11 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 105 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, prepared statement ........................................................................... 106 

WITNESSES

Lorraine Gershman, Director, Regulatory and Technical Affairs, American 

Chemistry Council ................................................................................................ 12 

Prepared statement .......................................................................................... 15 

Kenneth Weiss, Managing Partner, Global Air Services, Environmental Resources Management ........................................................................................... 18 

Prepared statement .......................................................................................... 20 

Collin P. O’Mara, Secretary, Department of Natural Resources and Environmental Control, State of Delaware ..................................................................... 24 

Prepared statement .......................................................................................... 27 

John D. Walke, Senior Attorney and Director, Climate and Clean Air Program, Natural Resources Defense Council ......................................................... 36 

Prepared statement .......................................................................................... 38 

Karen A. Kerrigan, President and Chief Executive Officer, Small Business 

and Entrepreneurship Council ............................................................................ 56 

Prepared statement .......................................................................................... 58 

Ross Eisenberg, Vice President, Energy and Resources Policy, National Association of Manufacturers ..................................................................................... 63 

Prepared statement .......................................................................................... 65 

SUBMITTED MATERIAL

Discussion Draft, H.R. ———, the Promoting New Manufacturing Act, submitted by Mr. Whitfield ....................................................................................... 4 

(1) 

H.R. ———, THE PROMOTING NEW 

MANUFACTURING ACT 

WEDNESDAY, MAY 21, 2014 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY AND POWER, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:01 a.m., in Room 

2322 of the Rayburn House Office Building, Hon. Ed Whitfield 

(chairman of the subcommittee] presiding. 

Members present: Representatives Whitfield, Scalise, Shimkus, 

Terry, Latta, Cassidy, Olson, McKinley, Griffith, Rush, McNerney, 

Tonko, Barrow, Dingell (ex officio), and Waxman (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Leighton Brown, 

Press Assistant; Allison Busbee, Policy Coordinator, Energy and 

Power; Andy Duberstein, Deputy Press Secretary; Tom 

Hassenboehler, Chief Counsel, Energy and Power; Mary Neumayr, 

Senior Energy Counsel; Chris Sarley, Policy Coordinator, Environment and the Economy; Alison Cassady, Democratic Senior Professional Staff Member; Caitlin Haberman, Democratic Policy Analyst; 

Bruce Ho, Democratic Counsel; and Alexandra Teitz, Democratic 

Senior Counsel, Environment and Energy. 

Mr. WHITFIELD. I would like to call this hearing to order. Today 

we are going to look at the regulatory roadblocks to the Nation’s 

manufacturing renaissance with a discussion draft of a bill entitled 

the Promoting New Manufacturing Act. And I do want to thank all 

the witnesses for being with us today. We look forward to your testimony, and certainly I will be introducing each one of you, and we 

will have questions for you a little bit later. At this time I would 

like to recognize myself for a 5-minute opening statement. 

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY 

Polls have shown that the American people are of the opinion 

that economic growth and job creation is the number one issue facing the American people. And I think all of us recognize that very 

slow economic growth over the last 6 years has been pretty frustrating for all of us. Now, I know that President Obama, and Vice 

President Biden, and people in his administration talk about this 

issue frequently as well. As a matter of fact, the President frequently in public talks about the importance of streamlining the 

permitting process. And yet, as is so often the case, he frequently 

says one thing, but then his administration takes actions that are 

2 

contrary to that. And that has certainly been happening at EPA, 

and many of the other regulatory bodies. 

Now, the chemical industry estimated, as of this week, that 177 

projects, manufacturing projects, have been proposed in the U.S., 

representing $112 billion in investment, and over 600,000 high 

paying manufacturing jobs. This is an extremely positive development, obviously. And also, with the great renaissance that we are 

having in the natural gas arena, we have a unique opportunity in 

America to step out in front and be one of the leading competitors 

in the world, and competing in the world to grow this economy, and 

create jobs. 

But this manufacturing renaissance is far from a done deal, especially given the cumbersome permitting process that these projects 

must go through. It would be a great disservice to the American 

people if our Nation’s natural gas advantage is squandered through 

an unnecessarily lengthy bureaucratic process that delays, or even 

prevents, these job-creating modern new facilities from being built. 

Now, I might add that we invited EPA to testify today, but the 

agency declined our invitation to permit. They did talk to us yesterday, and said they look forward to working with us on a technical 

basis as we explore this legislation. And obviously we welcome 

that, that is very important. And even though EPA won’t be here 

today, we do have other witnesses who agree with EPA’s position, 

and I am sure that they will do a great job of explaining precisely 

the views of their entities, as well as probably the way EPA feels 

about some of these issues. 

I believe this bill contains several commonsense measures to increase transparency, and reduce unnecessary permitting delays. It 

increases the amount of public information about the number of 

these permits being issued, how long the process is taking, and also 

requires more information on EPA’s Environmental Appeals Board 

process. It reduces permitting delays by requiring that the implementing regulations and guidance be finalized concurrently with 

any new or revised national ambient air quality standard, rather 

than doing it months, or even years, later. And it also directs EPA 

to report to Congress on steps being taken by the agency to expedite the permitting process. 

I might add that none of the substantive requirements under the 

Clean Air Act would be altered in any way under this bill. In fact, 

these new industrial facilities will be considerably cleaner, more efficient than those currently in operation in the U.S., as well as 

those operating overseas. 

So, in sum, the discussion draft includes reasonable steps to 

streamline the permitting process, something that the administration agrees, at least the President says, needs to be addressed. So 

we are open to all suggestions to improve this vehicle as we move 

forward, and I look forward to the hearing. 

[The prepared statement of Mr. Whitfield follows:] 

PREPARED STATEMENT OF HON. ED WHITFIELD

The growth in domestic energy production over the last decade has truly been a 

game changer. Oil and natural gas have now joined coal as energy sources this Nation possesses in great abundance, and the Energy Information Administration believes that our energy output can continue increasing in the years ahead. 

3 

This ought to be very welcomed news, but at almost every turn Federal red tape 

prevents us from realizing the full potential of our energy bounty. This subcommittee has already taken action on many of these regulatory impediments, including EPA’s war on coal, the delays in building Keystone XL and other energy 

infrastructure projects, and the bureaucratic obstacles that are holding back natural 

gas exports. Today, we address the regulatory roadblocks to the Nation’s manufacturing renaissance with a discussion draft of a bill entitled the Promoting New Manufacturing Act. 

Plentiful and affordable natural gas supplies have given domestic manufacturers 

a potential advantage over the rest of the world. This is especially true for industries that use natural gas both as an energy source and a chemical feedstock. Indeed, the chemicals industry estimated as of this week that 177 projects have been 

proposed in the U.S., representing $112 billion in investment and over 600,000 highpaying manufacturing jobs. This is an extremely positive development, especially for 

an economy that continues to struggle and with so many Americans still out of 

work. 

But this manufacturing renaissance is far from a done deal, especially given the 

cumbersome permitting process that these projects must go through. It would be a 

great disservice to the American people if our Nation’s natural gas advantage is 

squandered through an unnecessarily lengthy bureaucratic process that delays or 

even prevents these job-creating modern new facilities from being built. 

President Obama has expressed the same concerns. In his last State of the Union 

address, he said ‘‘businesses plan to invest almost a hundred billion dollars in new 

factories that use natural gas. I’ll cut red tape to help States get those factories 

built and put folks to work.’’ I look forward to working with the administration to 

turn these words into action, and I believe that our discussion draft is an important 

step. 

I might add that we wanted EPA to testify today, but the agency declined our 

invitation to participate. We are sorry that EPA is not here to provide input, especially given that the President has made permit streamlining for industrial facilities 

a goal of his administration. Nonetheless, we are hopeful EPA will provide us with 

technical assistance as move ahead with the Promoting New Manufacturing Act, 

and we plan to continue reaching out to the agency as we move forward. 

I believe this bill contains several commonsense measures to increase transparency and reduce unnecessary permitting delays for preconstruction permits 

under the Clean Air Act. It increases the amount of public information about the 

number of these permits being issued and how long the process is taking, and also 

requires more information on EPA’s Environmental Appeals Board process. It reduces permitting delays by requiring that the implementing regulations and guidance be finalized concurrently with any new or revised National Ambient Air Quality Standard (NAAQS) rather than months or even years later. And it also directs 

EPA to report to Congress on steps being taken by the agency to expedite the permitting process. 

I might add that none of the substantive requirements under the Clean Air Act 

would be altered in any way by this bill. In fact, these new industrial facilities will 

be considerably cleaner and more efficient than those currently in operation in the 

U.S. as well as those operating overseas. 

In sum, the discussion draft includes reasonable steps to streamline the permitting process, something that the administration agrees needs to be addressed. We 

are open to all suggestions to improve this vehicle so that America’s manufacturing 

renaissance can commence as soon as possible. 

[The discussion draft follows:] 

4 

5 

6 

7 

8 

9 

10 

Mr. WHITFIELD. At this time, I would like to recognize the gentleman from Chicago, Mr. Rush, for a 5-minute opening statement. 

OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. I want to thank you, Mr. Chairman. Mr. Chairman, 

the Promoting New Manufacturing Act is billed as legislation that 

will require greater transparency and timeliness in obtaining 

preconstruction permits for new manufacturing facilities, as required under the Clean Air Act. Mr. Chairman, while I am not opposed to the idea of expediting the permitting process in a practical 

and thoughtful way, I am not convinced that the bill before us 

today as currently drafted is the way to go about, in terms of reforming this process. 

One of the main concerns I have, Mr. Chairman, with this legislation is that it puts an additional burden, and additional responsibility, on the U.S. EPA at a time when Congress has been steadily 

slashing funding for the EPA, making it much more difficult, if not 

impossible for it to carry out all of its duties, these new duties, 

even some of the new duties that this bill today requires. 

Additionally, this bill today before us appears to exempt new facilities from complying with the revised national ambient air quality standards if specific unrealistic conditions are not met, without 

taking into consideration the fact that much of the guidance, much 

of the implementation regulations, are enacted on the State level. 

Specifically, Mr. Chairman, Section 3 adds a new requirement for 

the EPA that, when publishing any final new or revised national 

ambient air quality standard, it must also concurrently, and I 

quote, ‘‘publish implementing regulations and guidance.’’ 

However, Mr. Chairman, in many cases State and regulated entities already have the tools and the guidance necessary for implementing the new national ambient air quality standards, and in 

other cases, this guidance evolves organically as issues and questions appear. I feel the consequence of this provision in Section 3, 

either intentionally or unintentionally, is that it may lead to an 

emergence of new lawsuits by industry, claiming that the EPA 

failed to meet this new requirement of concurrently issuing all final 

regulations and guidance, which may subsequently lead to detrimental delays in the issuance of new protected air quality standards. 

I also have concerns with the provision stating that a new or revised—shall not apply to the review and the disposition of a 

preconstructed permit application, unless final regulations and 

guidance concerning the submittal and consideration of permit applications have already been published. If a new facility is allowed 

to be built in an attainment area, but it does not have to comply 

with new or revised national ambient air quality standards, it is 

unclear how that new facility will impact existing facilities that 

may want to expand. And, in fact, it may push the entire area into 

a non-attainment area under this legislation, Mr. Chairman. 

Additionally, in areas of non-attainment, allowing new facilities 

to be constructed that do not have to meet revised national ambient air quality standards may force other existing facilities to make 

11 

even deeper cuts in their pollution emissions in order to bring the 

area into attainment. 

Finally, Mr. Chairman, while I look forward to engaging the distinguished panelists before us here today, I think that it would 

serve the members of this subcommittee well, it will serve all interested parties well, to hear from, and to question the EPA directly 

on how this legislation would affect the permitting processing. Mr. 

Chairman, I hope that we will have the opportunity to do so before 

we move this bill to markup, and I yield back. 

Mr. WHITFIELD. Thank you, Mr. Rush. Mr. Upton is not here this 

morning. Mr. Shimkus, do you or Mr. Latta have any comments? 

OK. At this time we will recognize the gentleman from California, 

Mr. McNerney, for his opening statement. 

OPENING STATEMENT OF HON. JERRY MCNERNEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. MCNERNEY. Thank you, Mr. Chairman. I wasn’t expecting to 

get up this early. I think today’s hearing focuses on the discussion 

draft of Promoting New Manufacturing Act, and I thank the witnesses for coming here this morning, taking time to testify about 

the proposed legislation. I hope that we will have an opportunity 

to hear from the EPA before we go to marking up this bill as well. 

I strongly support promoting new manufacturing in the United 

States, and, in fact, I spent a decade in the manufacturing sector, 

so I sympathize. However, in my humble opinion, Mr. Chairman, 

the bill looks like an attempt to weaken the Clean Air Act, so we 

need some work on this provision. 

Under the current law, the EPA sets national ambient air quality 

standards at levels sufficient to protect public health, and with an 

adequate margin of safety. Essentially, these standards identify the 

level of air pollution that is safe to breathe. When a company 

wants to build a new large facility, or expand an existing one, it 

has to apply for a preconstruction permit. States, not the EPA, 

issue most of these permits. To get a permit, a company must commit to install appropriate pollution controls, and show that the 

emissions from the new expanded facility will not cause a violation 

of the air quality standards. That is a straightforward standard. 

We shouldn’t allow new facilities to worsen already dirty air, or 

make clean air unsafe to breathe. 

Periodically the EPA updates the air quality standards, when the 

scientific evidence shows that it is necessary to protect public 

health. Under the Clean Air Act, new facilities need to meet whatever air quality standard is in place, and that ensures that the air 

is healthy to breathe. But this bill says that the EPA must issue 

regulations and guidance for implementing a new air quality standard at the same time that it issues the standard. If the EPA 

doesn’t do this, then, to get a permit, new facilities only have to 

show that they meet the old, less protective standard. 

I represented a part of California’s San Joaquin Valley, which 

has some of the Nation’s worst air pollution. These conditions negatively affect the quality of life, including health, safety, and missed 

days of school and work. In other words, air quality isn’t just a 

public health issue, but it is an economic issue. In the valley, the 

12 

district has up to 180 days to make a determination, but often 

these cases are permitted in just a few hours. Our region has been 

successful in addressing preconstruction permitting. 

However, the bill introduces uncertainty into the permitting 

process, requiring the EPA to issue regulations and guidance, but 

it is not clear what regulations and guidance will be sufficient. 

Also, when a facility gets a permit under the old standard, it is unclear whether it would be grandfathered in permanently, or whether it would have to go back later and install additional pollution 

controls. Adding uncertainty will delay the permitting process. 

The bill also imposes a host of new reporting requirements about 

permitting times, which impacts the States, since the States, and 

not the EPA, actually issue almost all of these permits. This reporting burden will be carried by the same State and EPA personnel 

who process the permits. The bill adds to their workload, and authorizes no new funding. 

People in my district in the Valley deserve clean air, and the Valley has made substantial progress in addressing this goal. And, in 

fact, this year is the cleanest air on record. We should continue to 

build on those efforts, not increase the burdens on air pollution 

controlled districts. We should be discussing how we can deliver 

more funding and resources for those agencies, rather than weakening public health protections. 

Mr. Chairman, I yield back. 

Mr. WHITFIELD. Thank you very much, Mr. McNerney. And, once 

again, I want to thank the six witnesses for being with us this 

morning. All of you are quite knowledgeable, and we look forward 

to your testimony. 

Instead of introducing each one of you, and then going back and 

introduce you again, I am just going to introduce you one by one 

as I recognize you for your 5 minutes. So our first witness this 

morning is Ms. Lorraine Gershman, who is the Director of Regulatory and Technical Affairs at the American Chemistry Council. 

And, Ms. Gershman, you are recognized for 5 minutes. 

STATEMENTS OF LORRAINE GERSHMAN, DIRECTOR, REGULATORY AND TECHNICAL AFFAIRS, AMERICAN CHEMISTRY 

COUNCIL; KENNETH WEISS, MANAGING PARTNER, GLOBAL 

AIR SERVICES, ENVIRONMENTAL RESOURCES MANAGEMENT; COLLIN P. O’MARA, SECRETARY, DEPARTMENT OF 

NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, 

STATE OF DELAWARE; JOHN D. WALKE, SENIOR ATTORNEY 

AND DIRECTOR, CLIMATE AND CLEAN AIR PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL; KAREN A. KERRIGAN, 

PRESIDENT AND CHIEF EXECUTIVE OFFICER, SMALL BUSINESS AND ENTREPRENEURSHIP COUNCIL; AND ROSS 

EISENBERG, VICE PRESIDENT, ENERGY AND RESOURCES 

POLICY, NATIONAL ASSOCIATION OF MANUFACTURERS 

STATEMENT OF LORRAINE GERSHMAN 

Ms. GERSHMAN. Thank you. ChairmanWhitfield, Ranking Member Rush, members of the subcommittee, thank you for the opportunity to testify on behalf of the American Chemistry Council in 

support of the draft legislation Promoting New Manufacturing Act. 

13 

This legislation will improve the regulatory permitting process for 

new and expanded factories, and help ensure continued growth in 

shale related manufacturing in the United States. 

ACC represents the leading companies engaged in the business 

of chemistry. We apply the science of chemistry to create innovative products and services that help make peoples’ lives better, 

healthier, and safer. The U.S. chemical industry is a key element 

of the economy, providing 784,000 skilled, good paying jobs all 

across our country. We are among the Nation’s largest exporters 

and investors in R and D. Our advanced materials and technologies 

include many that help save energy and reduce greenhouse gas 

emissions. High performance building insulation and windows, 

solar panels and wind turbines, and lightweight packaging and vehicle parts all start with chemistry. 

America’s chemical industry is undergoing a historic expansion 

made possible by abundant, affordable supplies of natural gas and 

natural gas liquids from shale formations. Due to our decisive competitive advantage in the cost and availability of energy and feed 

stock, the United States is currently the most attractive place in 

the world to invest in chemical manufacturing. As of this week, 177 

chemical industry projects, valued at $112 billion in potential new 

U.S. investment, have been announced. Fully 62 percent of this is 

foreign direct investment. Within 10 years, the new investments 

could generate tens of billions of dollars in new chemical industry 

exports, and hundreds of thousands of permanent new jobs. 

All of these projects must undergo a lengthy and complex environmental permitting process, filled with challenges that could derail the investments. Problems include uncertainty as to the schedule and process for obtaining a final preconstruction permit, and a 

requirement that companies use emission modeling programs that 

cannot adequately accommodate site specific data. Once a project 

is significantly delayed, the project can be scrapped, and companies 

make plans to proceed elsewhere. 

During his State of the Union address this past January, President Obama highlighted the important role that domestic natural 

gas is playing in the U.S. economy, and committed his administration to facilitate the permitting process for manufacturing projects. 

The President said, ‘‘Businesses plan to invest over $100 billion in 

new factories that use natural gas. I will cut red tape to help those 

States get these factories built.’’ The White House fact sheet stated, 

‘‘The administration will help States and localities coordinate review of proposed private sector projects to invest in new energy intensive U.S. manufacturing plants relying on natural gas.’’ 

Manufacturing facilities must be able to obtain required permits 

in a timely, transparent, and efficient manner. In recent years, 

EPA has tightened a number of NAAQS, including ozone in 2008, 

nitrogen dioxide and sulfur oxides in 2010, and fine particulate 

matter in 2012. A proposed tighter ozone NAAQS is expected later 

this year. Meanwhile, EPA is still working to implement these 

standards, along with some even older NAAQS. Lacking clear direction from EPA, State permitting agencies and manufacturing facilities have, at times, been left confused about the requirements 

to complete the preconstruction permitting process. 

14 

Manufacturing facilities need certainty and transparency in the 

permitting process. The steps required to obtain a preconstruction 

air permit within the Clean Air Act’s required 12 month deadline 

must be clear to all. EPA must issue implementation rules and 

guidance in tandem with any final NAAQS rules. The Promoting 

New Manufacturing Act will improve the permitting process by creating a dashboard showing the total number of preconstruction permits issued during the fiscal year, the percentage issued within 1 

year of application, and the average length of the review process, 

requiring EPA to issue guidance concurrent with any new rules so 

that manufacturers fully understand how to comply, and directing 

EPA to prepare an annual report to Congress on actions the agency 

has taken to expedite the permitting process. 

The Promoting New Manufacturing Act represents a step towards a timely, efficient, and transparent regulatory process. We 

are hopeful that, with continued leadership from this committee, 

and others in the House, that we can pass this bill, and expedite 

the unprecedented chemical industry investment planned for the 

United States. With that, I would be happy to take any questions. 

[The prepared statement of Ms. Gershman follows:] 

15 

16 

17 

18 

Mr. WHITFIELD. Thank you very much, Ms. Gershman. At this 

time I would like to recognize Mr. Ken Weiss, who is the global 

managing partner for the Air and Climate Change Environmental 

Resource Management Company. And you are recognized for 5 

minutes, Mr. Weiss. 

STATEMENT OF KENNETH WEISS 

Mr. WEISS. Thank you. Chairman Whitfield, Ranking Member 

Rush, thank you for the opportunity to testify in support of the 

draft legislation Promoting New Manufacturing Act. The legislation 

will remove much uncertainty and related schedule delays from the 

air emissions permitting process for major capital projects, and 

help ensure continued growth in manufacturing in the United 

States. 

ERM is a leading global provider of environmental health safety 

and sustainability related services. We have more than 5,000 people operating in 40 countries, and about 150 offices around the 

world. Seventy of those offices are in the United States. We have 

about 350 air quality staff in the United States. We have worked 

for about 50 percent of the global Fortune 500 in the past 5 years 

on air quality related assignments, and each year we do about 800 

air quality related assignments. 

Most of our work is in the oil and gas, power, mining, chemicals, 

and manufacturing sectors, across a wide swath of American industry, and a significant portion of my practice is advising these industries and my clients on the impacts of their permitting regulations 

on major capital projects. My experience almost unanimously is 

that air preconstruction permits are typically on the critical path 

of the vast majority of major capital projects, and that about 900 

projects a year might require these types of permits that would be 

facilitated by the Promoting New Manufacturing Act. 

Companies seeking to execute capital projects need to be able to 

develop realistic and predictable project timelines. This would ensure that equipment can be designed, procured, installed, and 

brought online when expected, and also support investment decisions. The uncertainty in the permitting process creates significant 

issues for such investment decisions. Companies are forced to guess 

at the amount of additional time to build into the permitting cycle 

for planning, as EPA often fails to meet the 1-year time limit allowed in the Clean Air Act for processing a permit. For projects 

that have investment needs of billions of dollars, the impact of 

these delays should not be underestimated. 

The Promoting New Manufacturing Act removes much of this uncertainty by ensuring that the EPA has issued final guidance to 

permit applicants on the exact manner in which to conduct the permitting analyses associated with capital projects. Guidance is necessary, as many technical issues must be addressed in determining 

how to conduct the analyses that can show compliance with the 

ambient air quality standards. This is particularly important, as 

EPA is constantly updating the ambient air quality standards. EPA 

recently tightened the NAAQS for nitrogen dioxide and sulfur oxides in 2010, and fine particle matter in 2012, and is expected to 

issue a tighter ozone standard later this year. At the same time, 

19 

the agency is working to implement these standards, along with 

some older NAAQS, including the 1997 and 2008 ozone NAAQS, 

and the 1997 and 2006 particulate matter NAAQS. This disconnect 

results in State permitting agencies and the regulated community 

in not having clear direction from the EPA regarding what needs 

to be done to complete the air preconstruction permitting process. 

EPA’s failure to provide final implementation rules and guidance 

to the regulated community and State agencies is easily documented. Using the fine particle matter standard as an example, it 

was not until May 16, 2008 that EPA promulgated its final rule for 

implementation of the new source review program for fine particle 

matter, despite having promulgated the NAAQS in 1977 and 2006. 

Importantly, the 2008 rule required certain gases to be considered 

precursor emissions to fine particle formation. 

Precursor emissions are emitted as gases, but react in the atmosphere to foreign particulate matter, such as sulfate and nitrates. 

Despite having adopted this rule in 2008, even today there is no 

final guidance available from EPA on how to conduct a fine particle 

matter ambient air quality analysis, nor is there any approved 

computer model available to analyze emissions surrounding the 

chemical transformation of precursor emissions into particular matter, a major contributor to fine particle concentrations in the ambient air. 

The most recent guidance from EPA on how to conduct this analysis is labeled draft, and was issued in March of 2013. It has not 

been finalized now, more than a year since its release. Affected 

sources have no choice but to be left with uncertainty. We routinely 

advise clients that obtaining a PSD permit can require anywhere 

from 1 to 3 years, and that a minimum of 12 to 18 months need 

to be allowed in the project schedule. 

The types of issues we have seen have included a large shale gas 

fired combustion turbine that was being constructed right in the 

middle of adoption of the PM2.5 NAAQS. The new, more stringent, 

NAAQS could not be met in the area of the project location, so 

there was no way to make the required air quality demonstrations. 

EPA guidance was non-existent, and the State did not know how 

to resolve this issue. This caused unnecessary project delays for a 

major new gas turbine. 

We worked on a steel plant in Louisiana that was delayed due 

to issues surrounding the NO2 ambient air quality standard that 

was adopted during a review of the permit application, and more 

than a year after the application was filed. We currently estimate 

that the lack of guidance added 2 years to the project schedule. 

The above examples are just a few of the obstacles we have experienced firsthand. The list of obstacles will grow as more facilities 

apply for preconstruction permits, and as the NAAQS continue to 

get more stringent. Additionally, by requiring the EPA to determine its track records to meeting the permit processing timeline, 

the agency will have the information necessary to act on and remove the underlying causes of project delays created unintentionally by the permitting program. 

Thanks for your time. I will be happy to answer any questions 

you may have. 

[The prepared statement of Mr. Weiss follows:] 

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Mr. WHITFIELD. Thank you. Our next witness is Mr. Colin 

O’Mara, good to see you, who is Secretary of the Delaware Department of Natural Resources and Environmental Control. And we are 

glad you are with us, and you are recognized for 5 minutes. 

STATEMENT OF COLLIN P. O’MARA 

Mr. O’MARA. Thank you, Mr. Chairman, Ranking Member Rush. 

I greatly appreciate you accommodating me, being a last-minute 

add to this panel, replacing my staff member. I will actually be 

starting a new job in 2 months. This will probably be the last time 

I will be before you in this capacity. I am going to become the CEO 

of the National Wildlife Federation, so you will be hearing me to 

bother you about wildlife issues in the future, maybe a little less 

on the Clean Air Act. But—— 

Mr. RUSH. Mr. Chairman, I just want to extend congratulations 

to him. 

Mr. O’MARA. Thank you. 

Mr. RUSH. What a promotion. 

Mr. O’MARA. I will be in Illinois soon, so—— 

Mr. WHITFIELD. Yes, and we have a lot of issues we want to talk 

to you about on wildlife. 

Mr. O’MARA. Nothing is as sticky as this stuff. Thank you very 

much for having me today. Delaware has a long, proud history of 

manufacturing. You know, companies like DuPont, Gore, you know, 

we have a refinery, all kind, you know, the chemical industry in 

many ways completely grew out of Delaware. And we actually 

agree with the premise of this effort, that more efficient permitting, 

more predictable, more clear and certain permitting is obviously a 

good thing for economic growth. We just kind of question the unintended consequences of this particular approach, and have maybe 

a few suggestions for a different way to look at it. 

In Delaware, under the leadership of our Governor, Jack Markel, 

we have focused like a laser on trying to improve permitting efficiency. You know, and my Air Director is sitting behind me, Ali 

Mirzakhalili, one of the finest Air Directors in the county, put his 

team through an incredible process of value stream mapping, trying to reduce permit times. He is gone, you know, our permits for 

kind of major sources take about 4 months, where in many other 

States it is more than a year. Our minor sources will take 2 

months. We are at about 72 days right now, compared to about 104 

days, about 3 1⁄2 months, about 3 or 4 years ago. And so we have 

shown that, by having a better process, we can get through the permits more quickly, providing the certainty. 

And that is really the key to our approach in Delaware. The approach is fairly simple. We want to provide certainty to industry 

by articulating clear standards. We want to deliver permits in a 

timely and efficient manner, so they get the decisions they need. 

And then we actually supplement our strategy with one other 

piece. We actually provide some incentives. If folks are willing to 

go above and beyond permitting requirements, we provide, you 

know, small grants. They want, you know, maybe adopting cleaner 

fuels, or helping them get, you know, a gas pipeline to the site, or, 

you know, things that can actually make the facility better long 

run. And it is because we strongly believe in the underlying belief 

25 

in the Clean Air Act, and the tenet of the Clean Air Act, that it 

is much cheaper to reduce emissions during the design of a facility 

than it is to try to retrofit later. 

Now, a lot of these facilities around the country that have tried 

to, you know, add controls later, and you have heard this in response to the Toxic Rule and others, the expense and the time that 

folks need to try to do it after the fact. If we can figure out ways 

to incorporate these technologies earlier, it is cheaper, and it 

doesn’t create kind of unintended consequences in other facilities. 

And I think that the challenge with this bill as proposed, and I 

really appreciate the opportunity to come at the draft discussion 

level, before it is formally introduced, before it is marked up, because the unintended consequence of having folks go in and apply 

for permits under an old standard, when a new standard has already been promulgated in a meaningful way, even though the 

guidance may not have been issued, puts both the State and the 

regulated entity in an incredibly precarious position. The regulated 

entity is basically knowingly not putting the controls that would be 

necessary for the standard that is promulgated that is fully in the 

Federal Code at that point, so there is a potential legal liability 

there. The State, then, has to figure out other places to make up 

the reductions that could have been more cost effectively reduced 

through the controls being put on at this new facility. 

And so what ends up happening is it might help that individual 

facility, if they have to do less on the control side. The challenge 

is those reductions that could have been achieved have to be made 

up somewhere else. And so, as we are trying to put together our 

State implementation plans, we might have to go back to an existing industry that has already put on a lot of controls, trying to get 

that extra additional ton out of that facility, because this other facility didn’t kind of do their fair share. 

The other kind of inequity that we could create unintentionally 

is that a new facility that comes in after the guidance. So you could 

have two facilities, same type of operation, gas turbine generation, 

you know, one that comes in before the guidance is promulgated, 

one that comes in afterwards. The one that comes in afterwards is 

going to have to meet a higher standard, creating another inequity 

there, where they are doing more to go above and beyond the requirements for exactly the same facility in the same State. You 

know, we would much rather see ways to, you know, to really kind 

of incentivize the folks that go above and beyond the permit conditions, rather than having this inequity of the types of standards 

that different folks meet. 

And it really comes back to the underlying assumption that I will 

challenge in the bill, that States aren’t doing a good job figuring 

this out. EPA has had slow guidance on many of these rules. I 

mean, the 2008 is a good example. But that doesn’t paralyze the 

States in any meaningful way. We are talking to each other all the 

time. We are moving ahead. Frankly, a lot of times, the way that 

we issue permits in Delaware, and a lot of the East Coast States 

are actually more efficient and more flexible than the way the guidance actually comes out later. Like, actually not having the guidance, and allowing us to implement under just the rule allows us 

to be more nimble, and actually help industry in a significant way. 

26 

And so, you know, I do respect the intent. I mean, there is no 

one that supports manufacturing more than me, a kid that grew 

up in Upstate New York, in Syracuse. That is, you know, kind of 

the heart of the Rust Belt that needs these kind of jobs. But we 

think we can actually achieve our quality goals in a much more efficient way, not have adverse public health impacts, because we 

will have additional pollution if this does kind of go into effect, that 

is going to be very difficult to pull out of the system later. And we 

would love to work with you on a more efficient way to do it, because we firmly believe that, you know, manufacturing is absolutely critical, but we think we can do a little better than this proposal. 

[The prepared statement of Mr. O’Mara follows:] 

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Mr. WHITFIELD. Thanks very much, Mr. O’Mara. At this time our 

next witness is Mr. John Walke, who is a Senior Attorney and Director for the Climate and Clean Air Program at the Natural Resources Defense Council. And, Mr. Walke, welcome, and you are 

recognized for 5 minutes. 

STATEMENT OF JOHN D. WALKE 

Mr. WALKE. Thank you, Chairman Whitfield, Ranking Member 

Rush, and members of the subcommittee for the opportunity to testify today. The draft legislation before you, in our opinion, is a 

flawed bill that would authorize amnesty from national clean air 

health standards, create red tape, and impose unintended burdens 

on local businesses. Instead of reducing permitting burdens, the bill 

would open up facilities to new legal liabilities, higher costs, and 

regulatory delays. I suspect many of these outcomes are unintended consequences of the draft bill, but these objectionable substantive elements of the draft legislation are coupled with a false 

premise and lack of foundation for its central approach. I would 

like to take a few minutes to discuss the individual sections of the 

draft bill, and why they are problematic. 

Section 3 of the bill is the most problematic part of the draft bill. 

It creates an unjustified amnesty from new or revised national 

clean air health standards during preconstruction permitting for 

individual facilities undertaking new construction or modifications. 

This would harm air quality, the health of surrounding communities, and impose unfair burdens and costs on other local businesses in the same area as the facility receiving the amnesty. The 

bill would create unintended consequences, and increase costs for 

other businesses in that same area. This is because the Clean Air 

Act still would require EPA State and local officials to attain national health standards, and to avoid interfering with clean air resources in areas that already meet national health standards. 

The only way for regulators to accomplish this would be for Government regulators to crack down on other businesses in the area, 

or to require the newly permitted facility to either stop operating, 

or undertake potentially costly retrofits to install necessary pollution controls. Imposing additional costs and control obligations on 

existing local businesses in order to grant amnesty to a newly constructed facility is inequitable, and even punitive, in our view. 

There is no reason to impose these terrible choices on facility owners or operators, nor on State and local regulators, local businesses, 

and local communities, nor is there any reason for doing damage 

to the Clean Air Act’s health safeguards in the manner that we believe Section 3 of the bill would. 

None of the written testimony before you today has concrete examples of air permits not being issued due to a lack of EPA implementing rules or guidance. I am personally unaware of situations 

in which EPA implementation rules or guidance were deemed necessary to the issuance of pre-construction permits following revisions to national health standards. Pre-construction permits, as 

Mr. O’Mara has indicated, continue to be issued while national air 

quality standards are being revised and updated. Delays and uncertainty are not welcome, to be sure, but uncertainty for corporaVerDate Mar 15 2010 09:31 Nov 19, 2014 Jkt 037690 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 F:\113-147 MANUFACTURING ASK OK 11-18-14\113-147 MANUFACTURING PDF MADE
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tions should not come at the expense of subjecting Americans to 

the certainty of unhealthy and illegal levels of air pollution in the 

manner that the bill’s amnesty provision would. 

Turning to Sections 2 and 4 of the draft bill, these provisions represent red tape that consume limited agency resources in order to 

compile information mostly in the possession of State and local 

agencies, rather than EPA. These sections require EPA to collect 

information on pre-construction permitting, but overlook the fact 

that over 80 percent of the States oversee their own pre-construction permitting. EPA rarely permits individual facilities, actually, 

and it makes little sense for Congress to require this information 

from EPA, rather than from individual State and local permitting 

authorities. In light of this permitting landscape, the question then 

becomes whether it makes sense to saddle resource constrained 

State and local governments with red tape at the expense of carrying out and enforcing health safeguards that protect Americans. 

We do not think this makes much sense. 

Lastly, the draft legislation manages to run afoul of all five Congressional Declarations of Purposes behind the Clean Air Act’s preconstruction permitting program in clean areas, or so-called attainment areas. The Act’s pre-construction permitting program was 

written into law by Congress to ensure that newly constructed or 

modified stationary sources do not violate national health standards, do not interfere with a State’s plan for meeting, and continuing to meet those health standards, do not harm national 

parks, and do not impose unfair burdens and additional costs on 

other local businesses in an area when a newly permitted facility 

wishes to construct and add higher pollution levels. The draft bill 

contravenes all of these statutory objectives. 

Today’s bill, in our view, represents a sharp departure from the 

Clean Air Act, and 37 years of permitting practices. EPA updates 

national health standards when the science shows that standards 

should be strengthened to protect Americans with an adequate 

margin of safety. Providing facilities amnesty from national health 

standards does a disservice to permit holders, other local businesses, air quality, and public health. I urge the subcommittee not 

to advance the draft bill. Thank you. 

[The prepared statement of Mr. Walke follows:] 

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Mr. WHITFIELD. Thank you, Mr. Walke. And our next witness is 

Ms. Karen Kerrigan, who is the President and Chief Executive Officer for the Small Business and Entrepreneurship Council. And 

you are recognized for 5 minutes. 

STATEMENT OF KAREN A. KERRIGAN 

Ms. KERRIGAN. Thank you, Chairman Whitfield, and Ranking 

Member Rush, and members of the subcommittee, for the opportunity to participate and provide the views of the Small Business 

and Entrepreneurship Council this morning on legislative efforts to 

promote new manufacturing and growth in the United States. 

Again, I am Karen Kerrigan, President and CEO of SBE Council. 

We are a non-profit advocacy, research, and training organization 

dedicated to protecting small business, and promoting entrepreneurship. And for 20 years, SBE Council and our members have 

worked to develop and support policies that enable business startup and growth. We are pleased to lend our support to the Promoting New Manufacturing Act. This draft bill is a practical measure that aligns with bipartisan goals to improve Government and 

transparency, and strengthen quality job growth and investment in 

the United States. 

The legislation contains reasonable accountability features that 

will serve to provide businesses with the timely information they 

need to make decisions and plan. Provisions that require the EPA 

to better monitor, make public, and report on the timing of permits, 

and to provide timely and concurrent guidance and rules about how 

to comply with new or revised air quality standards, will establish 

greater clarity and certainty for businesses and investors. This is 

especially critical, given the potential for new manufacturing in the 

U.S., a positive development that will lead to quality job growth, 

and opportunities for small businesses and entrepreneurs. 

Now, the figures, as you noted, Chairman, and also provided by 

Ms. Gershman of the American Chemistry Council, are indeed impressive, and there is a lot of small business opportunity in those 

projects, opportunities for struggling small businesses, and the potential for new business startup and growth. And this is an area 

where our economy needs help. That is, we need more entrepreneurship, and growing small businesses that hire full time employees. Unfortunately, ongoing reports find that we are flailing in this 

critical area. However, there is one sector where we are excelling, 

and that is in energy. 

Beyond the benefits of transparency and clarity the Promoting 

New Manufacturing Act would bring to the permitting process, 

small businesses in the energy sector would continue to benefit 

from the growth in natural gas demand that new or expanded facilities would generate. The tremendous increase in domestic natural gas production has been a significant development for small 

business. Entrepreneurship and business formation in the energy 

sector in recent years has been extraordinary. In a report released 

by our organization in June of 2013, we found that at the same 

time that both employment and employer firms declined between 

2005 and 2010, job growth and new business formation grew within 

the energy sector, and continues to this day. I provided those deVerDate Mar 15 2010 09:31 Nov 19, 2014 Jkt 037690 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 F:\113-147 MANUFACTURING ASK OK 11-18-14\113-147 MANUFACTURING PDF MADE
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tailed numbers in my written testimony, but, again, the growth in 

new businesses is particularly striking among small firms. 

President Obama recognized the opportunities and potential in 

shale gas development in his State of the Union speech this past 

January. He pledged to cut red tape to help States to get those factories built referenced in his speech, and based on the ACC’s numbers, the Promoting New Manufacturing Act is an opportunity to 

advance an initiative that appears aligned with the President’s 

pledge. Bringing greater transparency and accountability to the 

pre-construction permit program is one way both parties can work 

together to help revitalize manufacturing and strengthen U.S. competitiveness. More growth opportunities for small business and new 

manufacturing projects, and the energy sector, will produce a virtual cycle of increased investment, enhanced GDP growth, rising 

incomes, and more jobs. 

Thank you again, Chairman and Ranking Member Rush. I look 

forward to questions and discussion. 

[The prepared statement of Ms. Kerrigan follows:] 

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Mr. WHITFIELD. Thank you, Ms. Kerrigan. And our final witness 

is Mr. Ross Eisenberg, who is the Vice President for Energy and 

Resources Policy at the National Manufacturers Association. And 

thanks for being with us, Mr. Eisenberg. You are recognized for 5 

minutes. 

STATEMENT OF ROSS EISENBERG 

Mr. EISENBERG. Of course. Thank you so much. Good morning, 

Chairman Whitfield, Ranking Member Rush, members of the subcommittee. As you have heard from the National Association of 

Manufacturers, and our 12,000 members, for many years now, the 

boom in domestic energy production is driving major new investment in manufacturing, and contributing to increased U.S. competitiveness around the world. For us, for manufacturers, this could 

mean as many as one million new jobs by 2025 as we build new 

iron, steel, cement, fertilizer, chemicals, aluminum, plastics, and 

many other manufacturing facilities, as well as the products that 

are made from these materials, so the future is good. 

We understand, as manufacturers, the risks inherent in making 

investments of this magnitude in the United States. We understand that, even with our built-in energy advantage, we still have 

a significant disadvantage owing to other policies, like taxes, and 

torts, and regulations. We understand that new regulations will be 

issued while we wait for our permit, moving the goalpost, and forcing us to change our entire plan mid-stream. We understand that 

often law firms, masquerading as public interest groups, will exploit every step of the approval process, and drive up project costs, 

in the hopes that we will simply want to walk away. 

We understand that all of this is going to happen, and we still 

take these risks, but it doesn’t mean that we don’t want to do 

something about it. So with manufacturing on the verge of a major 

comeback, there is really no better time, in our view, than now for 

the subcommittee to examine the permitting process, and whether 

or not it can be improved, and if so, how. 

Manufacturers continue to struggle with the complex requirements of the New Source Review program. When I was preparing 

for today’s hearing, I sent a note to our members and reached out 

to our members, asking for their feedback on what is good and 

what is bad about the NSR process. What I got back is listed in 

my written testimony. It is long. The intention here was not to create a list of horribles, and I do understand that that is probably 

what it looks like, but rather to try to give members an honest assessment of what the plant managers, the business owners, the EH 

and S people at my members in the field are having to do when 

they try to build facilities, or modify existing ones. Challenges they 

raised with me in the NSR process include changed permit conditions that derail the project, a mandatory stay on construction 

when a project is challenged at the EAB level, modeling issues, of 

which they say there are very many, barriers to installation of energy efficiency, and combined heat and power that the NSR process 

provides, threats of litigation on the back end, which then create 

delays on the front end as you try to serve judgment, improve the 

permit, uncertainty on how to address remands when permits are 

sent back, and even delays they are finding for simple minor source 

64 

permits that don’t even trigger the PSD process. And the EPA, to 

its credit, has listened to manufacturers’ permit concerns, and it is 

aware of many of these problems, and is actively trying to fix them, 

but we believe Congress can and should be part of the solution as 

well. 

Now I would like to also talk about what appears to be a real 

problem in the functioning of the PSD program for greenhouse 

gases. For several years the NAM and other groups in this town 

have warned the members of the subcommittee that extending the 

PSD permitting program to greenhouse gases could act as a deterrent to construction. Based on the numbers of permits completed 

to date, I am concerned that we may have actually been correct in 

that respect. 

When EPA issued the greenhouse gas Tailoring Rule 4 years ago, 

it estimated that even with tailoring, it would have to issue about 

900 permits per year, so by now about 1,800 permits. However, recent information from the agency shows that in those 3-plus years 

since PSD was extended to greenhouse gases, they have only done 

166 permits total, rather than 1,800, so that is a stunning dropoff, and one for which the agency really doesn’t seem to have an 

easy answer. I think we should figure out why. We at NAM fear 

that PSD for greenhouse gases may actually be acting as a deterrent to new construction. 

So we believe the pre-construction permitting process can be improved, but we don’t really believe this should be a partisan, or 

even a contentious issue. Many of the problems identified can be 

addressed through a collaborative process involving EPA, Congress, 

and the regulated community in the States. Frankly, I am a little 

surprised by the reaction to this bill from some of my colleagues 

here on the panel. Let us be clear about what we are arguing about 

here. We are talking about some additional reporting requirements, 

and requiring that EPA issue a document in a timely fashion. That 

is really it. That is what we are arguing about here. 

So we believe the Promoting New Manufacturing Act takes a 

pragmatic approach to this very complex issue. It diagnoses a problem, if one exists, and provides the best available information so 

that EPA and the Congress can then decide if steps need to be 

taken to improve the process, and it requires the agency to do its 

job issuing guidance in a timely fashion. Given that a very, very 

large revision to the ozone NAAQS, quite possibly the most expensive new regulation that will ever be issued, and I say that in all 

seriousness, is due by the end of next year, this is a relatively 

small task to require from the agency. If the EPA expects implementation of this major new reg to begin immediately upon its 

issuance, then it must, at a minimum, issue the tools and develop 

the tools manufacturers are going to need to comply with it. 

So we appreciate the time and attention that the subcommittee 

is giving to the pre-construction permitting process. We thank you. 

Manufacturers look forward to working with you, and the entire 

subcommittee, on this bill, and on other measures that will enhance our manufacturing comeback. Thank you. 

[The prepared statement of Mr. Eisenberg follows:] 

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Mr. WHITFIELD. Thank you, and thank all of you for your testimony. At this time I would like to recognize myself for 5 minutes 

for questions, and then we will go to the other members. 

Ms. Gershman, you had mentioned in your testimony, and other 

witnesses also, about the 177 projects, and that 62 percent of this 

would be foreign investment. Are you all tracking these projects, 

and could you give us an update on your analysis of that? 

Ms. GERSHMAN. Certainly. We have been tracking publicly announced projects, so nothing in our—any of our numbers are secret. 

It is all gathered from press releases that companies themselves 

have made. The 177 new projects that I reference include projects 

in the petrochemical, resins, fertilizer, chlor-alkali, and organic 

chemical sectors. There is an even larger of announced projects in 

other industries resulting from the use of shale gas, which includes 

iron, steel, tires, and many manufacturing plastic processors and 

resins as well. 

Mr. WHITFIELD. Now, you know, one of the frustrating things, obviously, about Congress today is that there seems to be very little 

agreement on much of anything, but on expediting the permitting 

process, even the President is talking about the need for that. The 

States come to us frequently and talk about the need for that. Mr. 

O’Mara talks that in Delaware things seem to be going relatively 

well. I mean, Mr. Walke may disagree and not think anything really needs to be changed, but, Mr. Walke, would I be accurate in saying that, in your view, really nothing does need to be changed 

about this permitting process right now? 

Mr. WALKE. No. We would support the expediting of permits, just 

not at the expense of granting amnesty from health standards. 

That has been the focus of my testimony. 

Mr. WHITFIELD. But there are some methods to expedite that you 

all would be supportive of? 

Mr. WALKE. Sure. Certainly. We would be happy to join that conversation. 

Mr. WHITFIELD. And Mr. O’Mara, now, you said that you had 

some ideas on this, because, like I said, the States have complained 

to us about lack of direction. We have heard a lot of witnesses talk 

about it, but evidently it is not an issue in Delaware. What are 

some areas that you think we should be looking at that maybe we 

are not looking at right now? 

Mr. O’MARA. I think some of the conversations you facilitated 

last year, actually, I think has some good kind of bipartisan ideas 

around greater communication with EPA. And, I mean, one of the 

hang-ups that happens in some other regions, I am fairly blessed 

in Region Three that we are talking to our regional administrator 

all the time, and—— 

Mr. WHITFIELD. Are you referring to the forums? 

Mr. O’MARA. Yes, the forums that you held. 

Mr. WHITFIELD. OK. 

Mr. O’MARA. I mean, one area for, you know, greater collaboration is working with the EPA prior to submittal. So the States will 

send it back for the final review, and sometimes they get sent back, 

get remanded. You know, that process, if there is a greater coordination on the front end, can avoid a lot of the misunderstanding. 

And so you have seen some issues in some other States where 

80 

there isn’t that coordination up front, and you end up with this 

kind of torturous cycle. You know, if you can actually cut the back 

end, that provides a lot more certainty. 

I also think transparency could really help. You know, we try to 

be very transparent with our applicants, you know, about, you 

know, this is the date the draft permit is going to be issued, this 

is the date of the hearing, this is the date the decision will be 

made, so they can build that into their plan, because time is 

money. I mean, the cost of the permit is a fraction of the opportunity cost of not getting implemented. So, you know, more transparency there at the State and local level though, as Mr. Walke 

was saying, rather than at EPA’s level, because really this is a 

local decision. 

And then the last is actually around money. You know, a lot of 

the cuts to the EPA have been in the air program in the last few 

years, and those are resources that actually pay for much of the 

staff that would be putting out the guidance that we are complaining is being delayed. Some of that trickles through to the 

States, because the State grants get cut also, and so then we are 

trying to do more with less, trying to get things out. And so having 

sufficient staff to deliver permitting, more transparency, and then 

encouraging additional investment I think would be a good package 

that everyone could agree to. 

Mr. WHITFIELD. OK. Mr. Eisenberg, are you personally aware of 

projects that have actually just been abandoned because of the 

complications of this permitting process? 

Mr. EISENBERG. Yes, I am. And the members themselves ask 

that I not reveal who they are, but yes, I mean, without a doubt. 

And this is not, you know, these happen. Sometimes they don’t 

happen. So I don’t want to make generalizations here, but yes, I 

have members that walked away from projects because the permitting process was taking too long, or the modeling got to a point 

where there was no way that they could build this facility to meet 

the standards that were being—— 

Mr. WHITFIELD. You know, I am glad that you raised the greenhouse gas issue, because the endangerment finding, and even with 

the tailoring rule, I mean, I think EPA recognizes that they are 

going to have some significant issues, and those numbers that you 

gave about the 900 per year, and they have issued, like, 166, and 

I guess the endangerment finding was in 2009. So I think that is 

a very real issue, but I think all of us recognize the need to try to 

come up with a solution, and I hope that we have an opportunity, 

all working together, to do that. 

My time has expired, so at this time I recognize Mr. Rush for 5 

minutes. 

Mr. RUSH. I want to thank you, Mr. Chairman. 

Secretary O’Mara, we often hear from regulated industries about 

the importance of regulatory certainty in making investment decisions. We even heard from some of the witnesses today that this 

bill would do nothing to enhance regulatory certainty. Has your 

State even been unable to issue preconstruction permits because 

EPA has not issued guidance for a new air quality standard, and 

is this a situation that States have the ability to handle? 

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Mr. O’MARA. Thank you for the question. You know, we were the 

first State to sign the Constitution, so we have no problem kind of 

blazing ahead. And, frankly, in the case of times where there isn’t 

guidance, we keep working hard, we don’t wait. And so we will coordinate with the EPA, we will make sure they know what we are 

doing, but it is never held us up. And I have permitted, you know, 

hundreds of megawatts of combined gas plants. I have permitted 

big, you know, a restart of a refinery permitted, and big expansions 

of units, all kinds of energy projects in our State. And, you know, 

we are turning around permits very, very quickly, and it hasn’t 

slowed us down at all, as long as we are communicating during the 

process. 

Mr. RUSH. Do you agree with the assertion that this bill will provide greater transparency and timeliness in obtaining pre-construction permits for new manufacturing facilities? And, secondly, how 

does the EPA’s role differentiate from the State role in the process, 

and how would this bill impact that relationship? 

Mr. O’MARA. I think that the concept of transparency is a good 

one, because I do think that there is additional public pressure that 

can be applied to, you know, permits that are languishing if it is 

more clear about, you know, what timelines are, and kind of where 

things are stuck in the process. I think it is at the wrong level in 

the bill, frankly. I mean, you know, does EPA headquarters have 

to have a list on their Web site of projects in Delaware, or should 

Delaware have that list? 

And as many of you know, that have served on, you know, State 

and local legislative bodies, I mean, there is nothing more effective 

to expedite, you know, decision-making than having folks, and, you 

know, having those kind of timelines public, because folks are held 

accountable. And so I think, in terms of consistency, I think it actually creates more confusion, because you will have different standards, and there will be lack of clarity for both the regulator and 

the industry, and I think the transparency should really be more 

focused on the State and local level, instead of the Federal level. 

Mr. RUSH. This bill assumes that it is a huge problem if EPA 

does not issue rules and guidance at the same time as a new air 

quality standard, so the bill allows a facility to obtain a pre-construction permit pegged to an old air quality standard if the EPA 

hasn’t issued rules and guidance. Does this facilitate permitting, or 

does it create new avenues for litigation and delay, in your opinion? 

Mr. WALKE. Well, it is important to recognize that, you know, in 

the 37 years of this permitting program, it has been a requirement 

that new facilities meet revised health standards after they have 

been adopted. So the history of the 37 years, and I am not going 

to argue is an ideal history, but it shows that we can and do regularly, every year, every month, issue pre-construction permits at 

the same time that there are these standards changing. 

What puzzles me about the bill is, by granting amnesty to these 

newly constructed facilities, so for the first time ever in the Clean 

Air Act they don’t have to meet updated health standards, it poses 

a dilemma that Mr. O’Mara pointed out. These facilities would actually model violations of the new standards, and some of the witnesses have indicated that that has happened previously. But I 

don’t believe the bill intends to grant perpetual amnesty from reVerDate Mar 15 2010 09:31 Nov 19, 2014 Jkt 037690 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 F:\113-147 MANUFACTURING ASK OK 11-18-14\113-147 MANUFACTURING PDF MADE
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vised health standards. There is some vagueness about the bill that 

my written testimony addresses. 

But if that is the case, then a facility has to come back again, 

after the fact, with an after the fact permitting exercise, retrofit 

control exercise, and in the meantime other businesses are suffering the burden of additional pollution controls that I think are 

probably also unintended consequences of the bill. So I am not 

going to argue that this system that we have today is perfect, or 

could not stand improvement, but I think this actually takes us 

backwards. It certainly does on the health front. I think it does vis- 

&-vis permitting of the individual facility, and certainly for the 

other local businesses in that area. 

Mr. RUSH. I would like to just ask one additional question of both 

you and Mr. O’Mara. When you speak about public health, what 

is the impact on public health if this bill will go forward? 

Mr. O’MARA. Right now there are 30 million Americans, particularly on the East Coast, that are living with unhealthy air. And, 

you know, and I think, you know, in Delaware, where 90 percent 

of our pollution comes from out of State sources, you know, the idea 

of new facilities coming in, being allowed to pollute more than costeffective technology would allow, to not capture those reductions 

that are much cheaper than going back to an existing facility, 

where it might cost, you know, 50 times as much to add pollution 

controls to an older facility. It is economically inefficient. 

But, I mean, this is what affects kids. I mean, I have a 2-yearold daughter. I mean, the idea that she is breathing air that is 

unhealthy on a lot of days is painful. Seniors, you know, another 

disadvantaged population. So, at the end of the day, it is about people, and I think there are ways to avoid some of those impacts. 

Mr. RUSH. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Gentleman’s time has expired. There has been 

some comment about the burden on EPA of posting on its Web site. 

I might note that, in their budget documents, they already provide 

information on the percent of permits that they are issuing, so they 

already have a lot of this information. But at this time I will recognize the gentleman from Louisiana, Mr. Scalise, for 5 minutes. 

Mr. SCALISE. Thank you, Mr. Chairman. I appreciate you having 

this hearing, and I thank all of the panelists for coming and providing the testimony, and for answering our questions. I know 

there are a lot of questions that we have. EPA is one of those agencies that we have a lot of questions for because, frankly, when you 

talk to people that are trying to create jobs out in the country, I 

know in South Louisiana, unfortunately, the biggest impediment 

that they tell me about when they are sharing their challenges at 

creating more jobs in America are the regulations, and the lack of 

guidance, the lack of obtainable type of standards that are coming 

out of Washington. 

And that is not the way that Government should work. Government should not be the impediment to American job creation because, and I think a few of us have touched on this, I have seen 

it, many cases, when businesses are making decisions of where to 

make investment, they are not just saying, I am going to make it 

in Louisiana, or I am going to make it in Delaware, they are looking at other countries. And we are losing some of these jobs to 

83 

other countries because we are not getting clear guidance from 

Washington. And the EPA is one of the worst offenders. 

Now, let us be honest about this. When you look at some of the 

problems that we have seen from EPA, one of the reasons that this 

bill is necessary, and all it says, by the way, is that when they 

come out with some proposed rule, they have to concurrently publish regulations and guidance for implementing the rule. Just tell 

people how to implement it. Because a lot of times what we see is 

these rules have nothing to do with improving air quality. The 

rules are designed to literally try to inhibit people’s ability to get 

a permit. That is not the Government’s role, to stop people from 

making investment in this country and creating jobs. 

And, by the way, when those jobs go to those other countries, 

Brazil, or India, or China, you name it, we have got a list. When 

they go to those other countries, they don’t use the standards that 

we have today. They emit more carbon. They don’t follow the same 

kind of environmental regulations we already have. And yet, when 

these new standards come out, so often they are not about improving health and safety, it is about denying an industry. The President brags about the war on coal, saying he is going to bankrupt 

the coal industry. He doesn’t want to see coal plants be more efficient. He wants to see them shut down, and he is doing it. That 

is not the role of the Federal Government. 

So when we talk about this, I want to at least get some questions 

answered about this investment that I hear about, that others hear 

about. We hear about over $100 billion of investment that is waiting to happen, really good high paying jobs in America. Obviously 

Louisiana would be one of those States that would benefit, but so 

many other States across the country would. I want to ask Ms. 

Kerrigan and Mr. Eisenberg, because you all are there on the front 

lines, can you share with us some of the stories you know? I mean, 

are these numbers right? Are they low, maybe high? When we hear 

about $100 billion of investment that is waiting, and we just want 

guidance, want clear guidelines so that people can play by the 

rules. If you can share first, Ms. Kerrigan? 

Ms. KERRIGAN. One hundred billion dollars is a lot of money. 

Even if it was half of that, I mean, that is significant, you know, 

in terms of investment that could be made in this country. And 

when you, you know, when you look at the uncertainty of this issue 

in general, I mean, it really does filter down to the small businesses. You know, the individual, you know, firms and small businesses that, you know, are planning to work on these projects, or 

are contracted to work on these projects, there is a lot of planning 

that they need to do, in terms of financing, in terms of human capital acquisition, in terms of investing in new assets, et cetera. 

So if there is delay, or any type of delay or derailment, I mean, 

this is very costly to business owners and entrepreneurs, and could 

be catastrophic for some, you know, if these projects—if they are 

planning to work on them, they have made the investment, and the 

project falls through. But—— 

Mr. SCALISE. And Mr. Eisenberg, because I know you talked 

about the, you know, the folks that you have heard directly, I have 

heard directly, of plants that have moved to other countries because of the inability to get any kind of guidance and direction, and 

84 

get a permit to move forward and do something in a safe and effective manner in this country. I mean, can you give me a ballpark 

of what you think the number is that is out there of projects, manufacturing jobs, that are ready to go. 

Mr. EISENBERG. Sure. So we have had a couple different economists look at this, using the information that is out there, publicly 

available information, and also doing some research within the sectors, and there are two that we have put out. One is the one that 

that PWC did a couple years ago that said if we actually fully develop the shale resource that we have, then, based on the direct 

sort of upstream, midstream, you know, drilling kind of jobs, and 

then the manufacturing facilities that will then build out from all 

the energy, we could be creating, just with the manufacturing, a 

million jobs by 2025. 

We supported as study, as did ACC and a few other groups, that 

IHS Global Insight did a couple years ago, about a year ago, that 

looked at the natural gas value chain and chemicals, so it didn’t 

get as far as PWC, but it took a much deeper dive, and it forecasted for manufacturing about half a billion new jobs by 2025. The 

numbers have been pretty consistent. 

The amount of development down there is really staggering. I 

mean, anecdotally, I have members come in and say, look, we can’t 

build fast enough because we literally can’t find the people to do 

it. You know, we have a pipefitter that shows up for work one day, 

and then the guy down the street outbids me for him the next day. 

So there is a lot waiting to happen down there if we can figure—— 

Mr. SCALISE. And I appreciate what you all do in trying to create 

jobs in America. A lot of people up here talk about helping small 

businesses. There are real things we can actually do. This bill is 

one of them. There is no amnesty in this bill. This bill just says, 

if you are going to put a new standard out, EPA—I mean, if one 

of your companies misses a deadline for filing the permit, they 

don’t get the permit. EPA has missed deadlines over and over 

again. There just ought to be some transparency, and make the 

standard obtainable. Show how you can actually get it done. Don’t 

put a standard out just to put somebody out of business and run 

those jobs to China. That is what we are trying to do here, and I 

thank you, Mr. Chairman—— 

Mr. WHITFIELD. Gentleman—— 

Mr. SCALISE [continuing]. For the hearing. Yield back the balance of my time. 

Mr. RUSH. Mr. Chairman? 

Mr. WHITFIELD. Yes? 

Mr. RUSH. Mr. Chairman, I want to clarify a statement that you 

made, and—— 

Mr. WHITFIELD. That I made? 

Mr. RUSH. Yes, you made, that the EPA has the reporting data 

in its budget document. Mr. Chairman, we asked the EPA whether 

they had data on State permitting times, and EPA maintains that 

a database of the air pollution technology is required in major preconstruction permits. They do have a database, but it is voluntary. 

States are not required to report on that system, report to the system. Some States report voluntarily, other States report their most 

significant permits, and some may not do much reporting at all. 

85 

The EPA estimates that perhaps only 50 percent of all pre-construction permits make it into that database. Only 50 percent, Mr. 

Chairman. This means that to get the data required by this bill, 

the EPA is going to have to impose new mandatory reporting requirements on the States. And, Mr. Chairman, I don’t see how that 

will speed up State permitting. And if we had made it possible for 

the EPA to testify today, we could have heard this from the agency 

firsthand. And I just wanted to clarify those comments that you 

made a little earlier, Mr. Chairman. Thank you very much. 

Mr. WHITFIELD. Thank you so much for clarifying that. At this 

time I would like to recognize the gentleman from Michigan, Mr. 

Dingell, for 5 minutes. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy. I 

commend you for this hearing. My questions at first will be for Mr. 

Walke, Director of Climate and Clean Air Program. 

Sir, the Clean Air Act requires EPA to set protective air quality 

standards for pollutants, and States have the primary responsibility to meet these standards. The bill before us appears to ignore 

this division of responsibility and labor. Section 2 requires EPA to 

post information about permits issued by EPA, State, and local permitting authorities. Section 4 appears to require that EPA report 

on permit delays and actions EPA is taking to address delays for 

permits issued not only by EPA, but also by State and local permitting authorities. 

Now, Mr. Walke, you have testified that State and local permitting authorities, not EPA, issue most of the pre-construction permits in this country. Does any of the other, or do any of the other 

panelists disagree with that statement? OK, thank you, gentlemen 

and ladies. Now, this means, then, that Section 2 is requiring EPA 

to record an expenditure report on what scores of State and local 

permitting authorities are doing. To your knowledge, does EPA currently have the information that is required by Section 2, yes or 

no? 

Mr. WALKE. No, sir, I do not believe they do. 

Mr. DINGELL. OK. Does anybody disagree with that statement? 

Ms. GERSHMAN. I actually think that there might be a question 

as to what information EPA has versus does not have. In the appropriations language for fiscal year 2015, there is a performance 

metric in there for EPA that states that it is tracking the number 

of major permits that are being issued each year, and there is a 

percentage target of 78 percent that are issued within a year. But 

what we do not know is where that number comes from. 

Mr. DINGELL. Thank you very much. It also appears that Section 

4 would require EPA to go through public notice and comment to 

prepare an annual report on delays in pre-construction permits 

issued not only by EPA, but also by State and local permitting authorities. Mr. Secretary, is that right? 

Mr. O’MARA. Yes. 

Mr. DINGELL. Now, to your knowledge, does EPA have or regularly collect information from State and local permitting authorities 

on the specific reason for delays in issuing permits, yes or no? 

Mr. O’MARA. Not formally. There is a lot of conversation, but 

not—— 

86 

Mr. DINGELL. Now, Mr. Secretary, if EPA doesn’t publish implementation guidance, or is late in so doing, are State permitting 

agencies equipped to issue pre-construction permits in a timely 

manner, yes or no? 

Mr. O’MARA. Yes. 

Mr. DINGELL. Now, Mr. Secretary, the bill creates a loophole that 

could allow a new facility to meet an old air quality standard. Will 

this do anything to help the State of Delaware process its permits 

faster, yes or no? 

Mr. O’MARA. No. 

Mr. DINGELL. You would be finding yourself in the awkward position of approving permits to an old standard, rather than the new 

one, the current one, is that right? 

Mr. O’MARA. Yes. 

Mr. DINGELL. Now, the language of Section 3 is also ripe for litigation. Do you agree with that, and if so, could you please elaborate? 

Mr. O’MARA. Yes, I do believe that it is, because there is an open 

question about when the new standard is already in place, but 

when the guidance is then finalized, whether the facility that was 

permitted without the guidance under the old standard would then 

have to make immediate retrofit and upgrades to it, setting up citizen suits, setting up legal challenges, setting up inequity with 

other firms. So the legal uncertainty is significant, we believe. 

Mr. DINGELL. So it sort of appears here that we may be imposing, by the legislation, additional burdens that are unproductive, 

rather than by reducing the burdens, is that correct? 

Mr. O’MARA. Yes. 

Mr. DINGELL. Mr. Chairman, I thank you for your recognition. I 

commend our panel. I hope that we have been listening to my dear 

friend, Mr. Rush, who is very wise in these matters. And I thank 

you for your courtesy to me and the panel. Thank you for your—— 

Mr. WHITFIELD. Yes, we always listen to him. Thank you, Mr. 

Dingell. At this time I would like to recognize the gentleman from 

Ohio, Mr. Latta, for 5 minutes. 

Mr. RUSH. Mr. Chairman. 

Mr. LATTA. Well, thank you very much, Mr. Chairman, and 

thanks very much for our panelists for being here today. Just, 

again, I always like to just kind of preface what I am going to say 

with a little bit about my district, and the State of Ohio, and also 

what goes on, I think, in manufacturing. I have got 60,000 manufacturing jobs in my district. I not only have 60,000 manufacturing 

jobs, since my staff actually started keeping track, over the last 22 

months I have done about 500 visits in my district to manufacturing facilities, businesses, you name it, across it. The number one 

issue I hear from everybody out in my district are Federal regulations. 

And when SBA came out with their statistics a couple years ago, showing that in 2011 we had $1.7 trillion of regulations out there, 

that was a problem. But now, when we look at the update for this 

year, in 2014, we are looking at about $1.9 trillion. I have never 

had any of my businesses out there that I have ever gone through, 

small, medium, or large, ever say that they were against clean air, 

against clean water. But what we are looking at is a problem with 

87 

trying to comply, and also with the EPA always being the number 

one issue out there. 

Now, one of the things that—I was in one plant, and it was a 

very large manufacturer, and they probably had a table about the 

size of what we see across here, and it was full of all these books, 

and everything else, and they said one thing to me. You know, one 

of the problems we have is trying to comply with this, but the problem that they had was the EPA was trying to tell them to take a 

square peg, pound it through a round hole, because those regulations didn’t even work for their plant. So it really comes down to 

we want to make sure that, you know, we have everybody on the 

same cylinders, because, as we have heard from our witnesses 

today, especially for the number of jobs that are out there that we 

have the in the potential in the future are very, very important. 

So, Mr. Eisenberg, if I could start with you, you note in your testimony that revisions to the national ambient air quality standards 

can affect the ability to obtain air permits, and you specifically referenced the potential revisions to the ozone standards. And can you 

explain? 

Mr. EISENBERG. Yes, thank you. So we are now at a level that 

was put in place in 2008, was recently affirmed by the DC Circuit, 

of 75 parts per billion for national ambient air quality standards 

for ground level ozone. Those levels are subject to change every 5 

years, subject to revision. We are in the middle of one of those cycles right now. EPA is on a deadline to put out new ozone NAAQS 

in December of this year, and finalize them by October of next 

year. 

The last go round, EPA’s numbers were about $90 billion a year. 

We are looking at it, and we are thinking that it could actually be 

a little bit higher than it. The reason, quite frankly, is that, you 

know, we have made a lot of progress here on ozone, and we are 

getting to a point where the gains are getting a lot more expensive 

because, quite frankly, a lot of the technologies that we are required to get down to some of these levels just don’t actually exist, 

and you have to get very, very creative, and do things that may be 

a little unconventional, and a lot more expensive, than we would 

expect. 

If I could take a second, you know, one of the big assumptions 

here that we are making on this bill, in terms of, you know, some 

of the slippery slope downstream problems that it could cause is 

that if you, the Congress, were to tell EPA that it has to do the 

guidance concurrently, then it wouldn’t do it, and then all these 

bad things would happen. We hope that EPA would do it, and that 

these problems would be avoided. So, you know, again, if EPA just 

didn’t do it, and ignored the statute, then yes, you could be creating some unintended consequences, and you certainly would do 

that in the case of ozone. We would hope that, certainly for ozone, 

and for something that is going to cost that much, that we could 

get this guidance concurrently, so that we are not just stuck in 

limbo as the goalposts were moved. 

Mr. LATTA. Thank you. Ms. Kerrigan, if I could ask, you refer in 

your testimony to the complex and tentative regulatory permitting 

process that businesses face in this country. Do you believe that it 

88 

is important to look for ways to expedite the permitting process, 

and is that critical for job growth in this economy that we have? 

Ms. KERRIGAN. Absolutely. Look, we have, you know, we have 

heard the other testimony, and the investment dollars that are out 

there, and that are going to be invested in these projects. And, 

from a small business perspective, when I hear numbers like the 

ACC’s numbers, in terms of $100 billion, I mean, I think small 

business. I think small business opportunity, new business formation, new jobs, all the things that our economy needs to get back 

to robust growth, and back to competitiveness again. 

So not only in permitting, but in other areas, if there is, you 

know, if Government can improve, and it can work better, if it can 

work in collaboration with the business community, I mean, that 

is going to get these investment dollars flowing, and get our economy back to robust levels of growth again. 

Mr. LATTA. Well, thank you very much. And, Mr. Chairman, I 

see my time has expired, and I yield back. 

Mr. WHITFIELD. At this time the Chair recognizes the gentleman 

from California, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. I have several concerns 

about this bill. It follows the House Republicans’ mantra that the 

way to produce jobs is to weaken environmental protections. I don’t 

believe that is the case. It assumes that EPA is the problem, even 

here, where States are issuing almost all of these permits. In fact, 

the bill would likely slow permitting by diverting State and EPA 

resources, and adding legal uncertainty. 

But I want to focus on another problem. Section 3 of the bill undermines decades of Clean Air Act practice, and weakens air quality protections. The Clean Air Act requires a large new or expanding industrial facility to get an air pollution permit before starting 

construction. The facility must commit to install pollution controls. 

It must demonstrate that its emissions won’t produce unhealthy 

levels of air pollution in the area. And if the facility’s pollution 

would cause the area to violate an air pollution standard, then the 

facility must do more to reduce or offset its emissions. 

Well, this bill creates a loophole in the law. If EPA fails to meet 

new procedural requirements, the bill would allow a facility to get 

a permit by measuring its emissions against an outdated, less 

stringent air quality standard. Mr. Walke, you called this amnesty. 

What is the practical effect of allowing a new facility to be permitted under an outdated standard? 

Mr. WALKE. Well, the practical effect is the facility will emit pollution at levels that we know to be unhealthy, that previously, 

under 37 years of law, we had required them not to emit at in 

order to protect the public. And Mr. O’Mara, and his colleagues 

across the country, will be left explaining to concerned members of 

the public that Congress forced him, and his colleagues, to allow 

a facility to pollute at unhealthy levels that he cannot assure them 

are protective of air quality where they live. 

Mr. WAXMAN. So a permitting authority might have to issue a 

permit for a high air polluting facility? Mr. Walke, what are the 

public health implications of exempting new or modified facilities 

from more protective air quality standards? 

89 

Mr. WALKE. The Clean Air Act, since 1970, has required national 

health standards that are requisite to protect public health with an 

adequate margin of safety, the safety margin, primarily to protect 

children, seniors, asthmatics, and other vulnerable parts of the 

population. This bill wipes away those safeguards and says, we are 

going to allow this facility to pollute at levels that are not necessary to protect the public with that adequate margin of safety, 

and it will allow excessive and unhealthy levels of pollution that 

the law currently does not allow. We should be very clear about 

that. 

Mr. WAXMAN. Secretary O’Mara, what impact could this have on 

States like Delaware, that are downwind from polluting sources? 

Mr. O’MARA. Right now we are working, using every vehicle in 

our disposal, to both reduce emissions in the State, and we have 

reduced emissions more than any other State in the country over 

the last 5 years, but also trying to get more reductions upwind. By 

having facilities that could cost-effectively have fewer emissions, 

and not capturing them at that point, you are either going to have 

to find ways to reduce it in other places, which would be more expensive, or we just have to suffer worse and worse health outcomes. Either outcome is bad for the economy, and bad for the environment. 

Mr. WAXMAN. So the bill shifts the burden of air quality improvements from new plants to existing ones, existing facilities. Doesn’t 

that raise the cost, when you are trying to retrofit an existing? Isn’t 

it more reasonable to say it would be less expensive of a new facility that is coming online, that is going to be around for a longer 

period of time, should bear the cost of producing the emission reductions? 

Mr. O’MARA. Yes. I mean, study after study shows that it is 

much more cost effective to integrate pollution controls and system 

designs to meet new standards as you are building a facility as 

compared to retrofitting it. And so the idea of going back to, you 

know, a paint shop to make up for, you know, emission reductions, 

because the big facility could have gotten 30 percent fewer emissions, but they didn’t make the investments, is going to cost 50 

times as much for the small guy, I would argue hurt manufacturing more than the avoided controls will help it. 

Mr. WAXMAN. So we raise the overall cost of pollution controls, 

and we harm public health at the same time. That doesn’t sound 

like a very good deal to me. Existing industrial sources in your 

State, particularly if a new facility pushes an area into violation of 

the Clean Air Act, would be not just more expensive, but that 

would trigger a lot of other consequences as well. Would that be 

fair and cost effective? 

Mr. O’MARA. Neither fair nor cost effective. 

Mr. WAXMAN. And I think, Mr. Chairman, this goes against a 

key principle of the Clean Air Act, which requires new sources to 

do more because they will be around longer, it is a lot more cost 

effective to put in pollution controls up front. And if we step back 

and recognize the Clean Air Act works, it protects public health, it 

holds polluters responsible, fosters a State/Federal partnership, 

and produces cost effective pollution control, as far as I can tell, 

90 

this bill would do none of those things. Thank you. I yield back 

my—— 

Mr. WHITFIELD. The gentleman’s time has expired. At this time 

recognize the gentleman from West Virginia, Mr. McKinley, for 5 

minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. I guess I am working 

under the premise, from what I have read coming into this hearing, 

that some of these delays can be anywhere from a third to 40 percent of these pre-construction, or other EPA permits can be delayed 

for over a year. I know of one example, out on the West Coast, in 

Bellingham, Washington, they have been 4 years trying to get a 

permit to export coal, 4 years. Four years. 

Mr. Walke, in your adult life, have you ever been unemployed? 

Mr. WALKE. No, sir. 

Mr. MCKINLEY. I am afraid too many people in the Beltway don’t 

understand what that must feel like, when you are married, your 

2-year-old child, you lost your job, and you are told they are going 

to build this other plant, or there is a hope for something to happen, but it keeps getting delayed time and time and time again. 

When do we become more caring, as a Nation, to find out how we 

can move these projects forward? 

People want to build construction, or they want to build these 

manufacturing plants. The President has said he wants to do that. 

You say in your testimony that you would like to see that. But you 

seem to be putting perfect in front of just the good with this legislation. We are trying to make something happen, and we see Government constantly standing in the way. It is a dangerous thing 

that I have noticed here. I have only been in Congress for 4 years, 

but I see well-meaning people come to these panels, and their true 

intent is to stop legislation. And they do it very clever, with their 

words, how they twist them around, but the bottom line is not to 

let something happen. 

And all the while there are people in West Virginia, in Illinois, 

in Indiana, and Iowa, that are looking for jobs. They need manufacturing to come back to America. And people like you stand in the 

way because you want perfect to be the enemy of good. And let me 

ask you, what would you do to expedite these permits so that there 

is no reason—you and I both know it. I am an engineer. I have designed a lot of manufacturing plants. I have seen the delays on 

that. Why should they take over a year to get a preconstruction 

permit? 

Mr. WALKE. Mr. McKinley, if I may, you have chosen to spend 

a lot of your time talking about me, and I do care. I am here giving 

my time as a citizen and a witness—— 

Mr. MCKINLEY. Would you please answer the question? Because—— 

Mr. WALKE [continuing]. Because—— 

Mr. MCKINLEY. OK, that is the way you come across to me. 

Mr. WALKE. We have a—— 

Mr. MCKINLEY. That is my impression. 

Mr. WALKE [continuing]. Public policy—— 

Mr. MCKINLEY. Tell me how we are—— 

Mr. WALKE [continuing]. Disagreement. 

Mr. MCKINLEY [continuing]. Going to get—— 

91 

Mr. WALKE [continuing]. That there is no need—— 

Mr. MCKINLEY. How are we going—— 

Mr. WALKE [continuing]. To make—— 

Mr. MCKINLEY [continuing]. To get this thing—— 

Mr. WALKE [continuing]. Personal. 

Mr. MCKINLEY [continuing]. Working across America again? That 

is my question. Just how are you going to help us do it? 

Mr. WALKE. I think I have answered the question that I am willing to answer for you, Mr. McKinley, after your remarks. Thank 

you. 

Mr. MCKINLEY. Well, apparently you don’t choose to help us out, 

because we are trying to find a solution, and you seem to be putting up roadblocks. 

Mr. WALKE. I am here to—— 

Mr. MCKINLEY. So—— 

Mr. WALKE [continuing]. Help, Mr. McKinley—— 

Mr. MCKINLEY [continuing]. I am sorry that the—Mr. O’Mara, 

would you find ways that you might be—find that you could help 

us expedite some of these, and find some solutions? 

Mr. O’MARA. Yes. I think we have done a lot of work with the 

value stream mapping, figuring out where the dead spots were in 

the timing of the permits. We issue our permits in about 4 months, 

4 to 6 months on average in Delaware, which is significantly less 

than the year minimum that is required in the law. 

You know, we have better communication, more transparency. 

We fund our programs probably a little better than some other 

States, and we have a lot more collaboration with industry. And so, 

you know, I mean, I think those are all things—and the other thing 

that we have worked on, a lot of the plants are looking for access 

to natural gas, and they can’t figure out a way always to get access, because a lot of times they have to bear the entire burden of 

the cost of getting the gas pipeline to their facility. We have actually helped with the cost of that, in many cases, to make the economics better for some of these manufacturing plants. But we have 

a range of things in Delaware we would love to share. I mean, I 

know Randy pretty well in West Virginia, my counterpart, and 

they are doing some good things in West Virginia on the permitting 

side too. 

But, you know, there are a lot of these conversations going on 

among State regulators, and there are things that we can do to 

move things a lot faster. 

Mr. MCKINLEY. And at this time, my concern here, again, as you 

heard from my opening remarks, there are a lot of people unemployed that are struggling out there, and I wanted to find ways 

that we can show more caring and compassion to help them out. 

How can we move that along? We have the resources. It is a matter 

of prioritizing the time within the EPA, or wherever it is, to make 

those things happen. And when you, with your 2-year-old child, 

and someone else with a 2-, or 4-, or 6-year-old child, they just 

want a job. And when they hear someone holding up a permit because of a technicality, I find that offensive, and it is not good for 

the welfare of this country. So I yield back the balance of my time. 

Thank you. 

92 

Mr. WHITFIELD. Gentleman yields back. At this time will recognize the gentleman from California, Mr. McNerney, for 5 minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman, and I thank the witnesses for their testimony. There is a good spectrum of opinions 

that came across this morning. I do want to say that I disagree 

with some of my colleagues’ statements that the EPA’s total purpose is to prevent projects from going. I mean, that is not realistic. 

That is fairly biased, so we will move on from that. 

But, you know, from our point of view, when you hear testimony, 

you hear fairly contradictory ideas regarding uncertainty. Does this 

bill, proposed bill, increase uncertainty, or does it increase certainty? Does it increase State agency burdens, or does it decrease 

State agency burdens? Does it improve air quality, or does it decrease air quality? Those are the things that I would like to understand about this bill. So I know that these have come up already 

in some of the questions, but I would like to start with the increasing of the certainty, or decreasing of the certainty, that this bill 

would provide. 

And I would like to start with Ms. Kerrigan. Would you give an 

opinion about whether this would increase or decrease uncertainty 

in the permitting process for manufacturers? 

Ms. KERRIGAN. Sure. I think it would increase and improve certainty. The transparency aspect, you know, of the legislation, in 

terms of the posting of the information about the permits, the percentage of the permits, the timing of the permits, you know, public 

measurement of that, those type of things, tends to improve performance. So—— 

Mr. MCNERNEY. How about legal challenges? Would legal challenges be enhanced or diminished? 

Ms. KERRIGAN. You know, I am not quite sure. That assumes 

that the EPA, as I read this law, wouldn’t do its job under this legislation, that it wouldn’t be doing the concurrent guidance and the 

rules, along with an Act. So, you know, if they didn’t do what they 

were supposed to do, then this stuff, you know, some of the unintended consequences, the legal challenges and things like that, may 

occur. 

Mr. MCNERNEY. Mr. Walke? 

Mr. WALKE. Well, as I have testified, I believe the bill probably 

unintentionally creates greater legal uncertainty and 

vulnerabilities for both the facility that is receiving the amnesty 

under Section 3(b), as well as other local businesses that, as Mr. 

O’Mara has testified, are now going to be facing greater and more 

costlier obligations to retrofit, and to make up for that shortfall. I 

don’t think you meant misuse of the term uncertainty, but I think 

the bill does create the certainty that unhealthy emission levels 

will increase in the area, and the certainty that local communities 

will be subjected to unhealthy air pollution is just an inescapable 

result of the amnesty. 

Mr. MCNERNEY. Which would increase legal problems for the 

manufacturers? 

Mr. WALKE. Well, I suspect that there may be some unhappy citizens and groups in those communities that do not wish unhealthy 

air pollution levels to increase, and the bill creates, you know, legal 

uncertainties and vulnerabilities for such lawsuits, not only created 

93 

by the bill, but in the background law that allows citizens to hold 

Government accountable when they don’t uphold the law. 

Mr. MCNERNEY. Well, thank you. Mr. O’Mara, would Promoting 

New Manufacturing Act place a large burden on States, or would 

it reduce the burden on States? 

Mr. O’MARA. It increases the burden. It increases it in two major 

ways. One is that the regulatory uncertainty of having to permit 

facilities under an old standard, knowing that you are going to 

need to ask existing facilities to make up for their shortfall to meet 

your State goals is a challenge. And then some of the report challenges folks—if they were, you know, feeding information to the 

EPA, rather than delivering permits, that could slow down the permits as well. 

Mr. MCNERNEY. Does anyone on the panel believe that the bill 

would improve air quality? 

Mr. EISENBERG. If I may, I don’t believe that this bill’s intention 

is to improve or degrade air quality, one or the other, it is just to 

make the permits happen faster. I mean, no manufacturer wants 

to pollute more, right? I mean, so—— 

Mr. MCNERNEY. Clearly. 

Mr. EISENBERG [continuing]. We just want to make—— 

Mr. MCNERNEY. If you live in a non-attainment region, you certainly don’t want to see things get worse, and I have a fear that 

this would make things worse. 

Last question, Mr. O’Mara, do you have specific recommendations that would improve the permitting process that you would 

like to share, perhaps in written version later on? 

Mr. O’MARA. Absolutely. Would be happy to share an example. 

Mr. MCNERNEY. All right. Mr. Chairman, I yield back. 

Mr. WHITFIELD. Gentleman yields back. At this time recognize 

the gentleman from Texas, Mr. Olson, for 5 minutes. 

Mr. OLSON. I thank the Chair, and welcome all the witnesses. 

The people back home in Texas 22 want clean air and clean water, 

and they know that we have made great strides in improving our 

environment. Of course, these protections have come at a cost. But 

if we go too far, if we allow regulations to become red tape with 

little benefits, we block economic opportunity. We kill jobs. Sometimes I think EPA forgets that poverty is a threat to public health 

too. Rules show that economic expansion hurts the most impoverished in Texas. Slow economic expansion hurts the most impoverished in Texas, and that is why bills like this one before us are so 

useful. 

As Mr. Eisenberg testified, we will see a new ozone rule. It will 

likely be among the most expensive regulation in our country’s history. EPA’s estimate of a 10-year, $1 trillion drag on our economy 

could be the low end. That doesn’t make for a merry Christmas. 

Every State will see tough new permit requirements. Creating jobs 

will be harder. 

With that in mind, it is not unreasonable to demand transparency and fairness on New Source Review. We need to get this 

right, and strike the right balance before it gets worse. We have 

almost 10 million unemployed people in this country. I wonder 

what they would give to have a plant, or a job, in their hometown. 

94 

My first questions are for Ms. Gershman and Mr. Eisenberg. Recently EPA has failed to release updated guidance after it published new NAAQ standards. We are giving people a target, but 

leaving them in the dark as to how to get there. That is unfair. It 

brings uncertainty at a time when NAM and ACC members are 

making multibillion-dollar investment decisions. How important is 

a good understanding of timing when a major project is on the line? 

How important is that? Ms. Gershman? 

Ms. GERSHMAN. You are really hitting the nail on the head, and 

I want to emphasize that, you know, the facilities that we are 

building are state of the art. They have pollution controls. Nothing 

in this legislation is doing anything to undermine the NAAQS and 

the permitting process itself. These facilities will already have to 

install the best available control technology, or ensure that it has 

the lowest achievable emission rate. None of that is being changed. 

What we are simply here to ask is for EPA to make sure that it 

has thought through some of the implementation challenges that 

come about with these lower standards. That is what we are asking. 

EPA is still working to implement some of these standards that 

they have put in place, with the unintended consequences of not 

having the models available, or not having monitoring available to 

make the designations. Areas that are in limbo between standards 

do not necessarily know how to proceed. This holds up permits. A 

lot of these projects come with a substantial amount of financing 

attached. This financing is not available indefinitely, and if these 

permits aren’t issued, there are times where the financing will disappear, and the projects will therefore not go forward. And that is 

really what we are trying to do here. 

Mr. OLSON. Yes, ma’am. Mr. Eisenberg, you as well, sir. 

Mr. EISENBERG. Thank you. I think Ms. Gershman summed it up 

quite well. You know, we wouldn’t be talking about this if it hadn’t 

become a problem already, and it is a problem that we just want 

solved. You know, you saw in my written testimony the list of 

issues that my members have. There was very little editing on my 

part in that list. I mean, I just said, hey, guys, can you send me 

what you think, and I just put it in there, and they have a lot of 

problems. 

I don’t think that they are under the illusion that this is ever 

going to be perfect. They just want it to not be impossible, and it 

is at a point where it is impossible. 

Mr. EISENBERG. And one final question for all the panelists, if 

EPA releases new air quality standards, do you believe that the 

agency should always issue rules and guidance in a concurrent or 

timely fashion, yes or no? Ms. Gershman? 

Ms. GERSHMAN. Yes. 

Mr. OLSON. Mr. Weiss? Mr. O’Mara? 

Mr. O’MARA. Yes, but we shouldn’t stop the permit if they don’t. 

Mr. OLSON. Mr. Walke? 

Mr. WALKE. As warranted. 

Ms. KERRIGAN. Yes. 

Mr. OLSON. And finally, Mr. Eisenberg? 

Mr. EISENBERG. Yes. 

95 

Mr. OLSON. One final question, Mr. Eisenberg, about ozone. 

These new rules would put most of our country in non-attainment. 

Doesn’t that make sense to make this step right, make it more important that this permitting process is correct? 

Mr. EISENBERG. So you raise a very interesting issue there. I put 

some graphics in my testimony where we literally mapped out all 

of the projects that are now on the slate because of this new energy 

resource, and they all fall in areas that would presumably be nonattainment at 60, which is the low end of what EPA is considering. 

We are extremely concerned about this, and so, at a minimum, we 

need the permitting fixed on the backend, so that if we get hit hard 

on the front end, we at least have a way forward. 

Mr. OLSON. I am out of time to get back. By the way, sir, five 

National parks and forests will be attainment with this .6 parts per 

billion standard. Five. 

Mr. WHITFIELD. Thanks for your enthusiasm, Mr. Olson. At this 

time I would like to recognize—— 

Mr. OLSON. Thanks. 

Mr. WHITFIELD [continuing]. The gentleman from New York, Mr. 

Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair, and welcome, witnesses, and 

let me thank you all for sharing your thoughts with this committee. 

I do find it regrettable, though, if your personal integrity is challenged, or when your thoughts are offered, and we put you down 

for that. 

We all support efficient and effective permitting that protects 

public health and our environment without unnecessary delays, but 

this bill won’t accomplish that goal, in my opinion. Rather than 

helping State agencies process permits, or helping EPA support 

States, the bill actually distracts the very people tasked with writing the permits and implementing the law. The bill requires EPA 

to publish data on permit processing times, but EPA doesn’t have 

this information because States, not EPA, issue almost all of the 

permits. My understanding is that States voluntarily provide some 

information, but to get all of the information required by the bill, 

EPA is going to have to put new reporting requirements upon 

States. 

Secretary O’Mara, do you think EPA publishing data on permitting times will help Delaware issue pre-construction permits more 

quickly? 

Mr. O’MARA. No, because I think, at the end of the day, having 

the local entity, whether it is a local quality management district 

or a State, in our case, having that information delivered at the 

local level, so it is more transparent, is actually a better use of 

time. There is more accountability locally than at the national 

level. 

Mr. TONKO. Thank you. And would it be a distraction for your 

permitting staff if they have to collect information for EPA? 

Mr. O’MARA. Well, every minute they are spending on that is a 

minute they are not issuing a permit. 

Mr. TONKO. Thank you. The bill also requires EPA to report to 

Congress every year about the agency’s efforts to expedite pre-construction permitting. Again, since States are the primary permit 

writers, it is unclear how EPA will be able to explain, or commit 

96 

to resolve, any permitting delays. Secretary O’Mara, would this report to Congress help Delaware Expedite its pre-construction permitting? 

Mr. O’MARA. No. 

Mr. TONKO. While the core of this bill requires EPA to issue 

guidance and rules concurrently with any new or revised air quality standard, putting aside whether or not this is a workable or 

useful requirement, one thing is clear. It would require EPA to do 

still more work on a shorter timely. 

Mr. Walke, what do you think? Do you think this bill’s reporting 

requirements will make it easier or harder for EPA to issue guidance and rules more quickly? 

Mr. WALKE. I think it will make it harder. 

Mr. TONKO. Now, this committee wants EPA to do more, more 

information collection and publication, more actions to expedite 

State permits, and more reports to Congress, more and faster rules 

of guidance for every revised air quality standard. Common sense 

dictates that this would require more people and more resources, 

but the bill fails to provide the agency with any new funding. In 

fact, my Republican colleagues have voted time and time again to 

slash the EPA’s budget. 

Mr. Walke, how have budgeted cuts affected EPA’s ability to implement clean air programs? 

Mr. WALKE. We have actual evidence that EPA itself has told 

Federal courts, and has certainly told stakeholders that they lack 

the necessary budget resources today to fully carry out the law, 

and my written testimony has just an example of that that occurred in a court case, I think about 2 weeks ago. 

Mr. TONKO. Unfortunately, EPA is not here today to tell us how 

this bill would affect the agency’s ability to issue timely guidance 

and rules, while satisfying this bill’s reporting requirements. I hope 

we will have a chance to hear from EPA before marking up this 

bill. 

Secretary O’Mara, I will ask you this, as the lone Government official on this panel. Would you rather have EPA focus its limited 

resources on implementing air quality standards, and providing 

technical assistance to States, or on collecting data and reporting 

to Congress? 

Mr. O’MARA. We will take any help we can get to have them help 

us issue permits more quickly. 

Mr. TONKO. Thank you. If my Republican colleagues are actually 

interested in making permitting faster and more efficient, then 

they should start by ensuring that EPA and State agencies have 

the resources they need to implement the law. And, with that, Mr. 

Chair, I yield back. 

Mr. WHITFIELD. The gentleman yields back. At this time I would 

like to recognize the gentleman from Mr. Louisiana, Mr. Cassidy, 

actually, he is not Mr. Louisiana, he is Mr. Cassidy from Louisiana, 

for 5 minutes. I was all set to call on Mr. Griffith, and then you— 

OK. Mr. Griffith, you are—— 

Mr. GRIFFITH. All right. 

Mr. WHITFIELD [continuing]. Next, 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman, I appreciate that. Mr. 

Eisenberg, you were asked earlier if you thought that this bill imVerDate Mar 15 2010 09:31 Nov 19, 2014 Jkt 037690 PO 00000 Frm 00100 Fmt 6633 Sfmt 6633 F:\113-147 MANUFACTURING ASK OK 11-18-14\113-147 MANUFACTURING PDF MADE
97 

proved air quality, and you said you weren’t sure that that was the 

purpose of the bill, but I would submit to you that it may be part 

of the purpose of the bill. It may not have been the primary purpose of the bill, and here is the reasoning. 

I think Mr. Scalise hit on it earlier, that I think that this does 

actually work to improve air quality. You indicated in your prior 

testimony that while nobody wanted to be named, that you had 

members of your organization who had not opened up facilities, or 

had stopped working on a project because of the length of time, and 

the fact that they weren’t certain what was going to happen with 

the permitting process through the EPA because of the length of 

time, and the uncertainties caused by the current system. 

And what we know is, according to a NASA study, it takes 10 

days for the air to get from the middle of the Gobi Desert to the 

Eastern Shore of Virginia. When you are talking about air, we all 

share the same air. So either that company chooses, for regulatory 

purposes, to open up their facility in another country, which doesn’t 

have the standards that we have, or they choose to let their competitors in another country produce the product that they could 

have produced in the United States, creating jobs for American citizens, and at the same time those countries don’t have the regulations that we have in existence in our country. 

And the delay in the regulatory process thus means that that 

product, whether it is a Styrofoam cup, or some big piece of equipment, is going to be made in some other country, as opposed to 

being made in the United States, thus we have damaged the air 

of the world, particularly the air in the Northern Hemisphere, if it 

goes in the Northern Hemisphere, which then directly impacts the 

air quality in the United States. With that reasoning in line, 

wouldn’t you agree, then, that this bill, by making the process easier, and encouraging manufacturing in the United States, where we 

do care about our air quality, actually does improve air quality? 

Would you agree with me on that? 

Mr. EISENBERG. I would, and thank you for pointing that out. 

You know, and, frankly, if EPA does the job that Congress would 

be requiring in this bill, then the permits are issued quickly, and 

done at the levels that the statute would require. And so, yes, it 

would absolutely improve air quality. 

Mr. GRIFFITH. Yes. And I think that everyone would agree, and, 

Ms. Gershman, if I understood your testimony earlier, your folks 

are doing the best that they can with the state-of-the-art technology. They don’t want to be out here dumping things into the air. 

They are trying to do what is currently available, and they just 

need to know what the regulations are going to be, and it is that 

uncertainty which leads them to have frustration, and maybe even, 

as well, look at perhaps using another country, or allowing a competitor to produce the product. Is that also true? 

Ms. GERSHMAN. Yes, that is correct. We are already doing the 

state of the art. We are taking the best available technologies and 

installing them on our new facilities. 

Mr. GRIFFITH. And whenever there are delays, that can also create costs, which don’t help us create new jobs. It creates a negative 

impact on jobs. 

Ms. GERSHMAN. Absolutely. 

98 

Mr. GRIFFITH. So, and I don’t know who might want to touch on 

this, maybe Mr. Eisenberg, because I was talking with some people 

this morning, and we went to my old boiler MACT bill that I had 

in a few years back, and they were lamenting particularly the 

timelines not having been passed because of the uncertainty. Just 

like this bill, that bill tried to deal with some of the uncertainties, 

and they were talking about the fact that regulations came out in 

2004, and a lot of companies started—because they had a short 

time period, they started implementing, and spent millions and 

millions of dollars complying with the 2004 regs. 

Then those got overturned in court, and the EPA had to come up 

with new regs, and now they are spending millions and millions of 

dollars to do things. And we heard testimony about even from universities. Not just always manufacturers that get hit by this, but 

the universities got hit by this. They spent the money to comply, 

then found out they weren’t in compliance, and that creates a problem as well, does it not? 

Mr. EISENBERG. It absolutely does. 

Mr. GRIFFITH. And so what we are trying to do here is—there is 

a balance, and I appreciate Mr. O’Mara working with us on that 

balance, and all of you all trying to find that balance. We all want 

clean air. We all want clean water. What we have to do is try to 

figure out a way that we can have some certainty for those people 

who are creating the jobs, and at the same time make sure that 

we are moving forward to make our country the best that it can 

be. But that does not mean that we have to destroy jobs in the 

process. Wouldn’t you agree with that, Mr. Weiss? 

Mr. WEISS. I do agree with that. 

Mr. GRIFFITH. And I do appreciate it. Thank you all so much for 

being here today, and for your testimony today. And, with that, Mr. 

Chairman, I yield back. 

Mr. WHITFIELD. Gentleman yields back. Mr. Cassidy, you are up 

next, or would you prefer that I go to Mr. Terry? 

Mr. CASSIDY. Go to Mr. Terry. 

Mr. WHITFIELD. OK. I will recognize the gentleman from—— 

Mr. TERRY. I appreciate—— 

Mr. WHITFIELD [continuing]. Nebraska, Mr. Terry, for 5 minutes. 

Mr. TERRY. Thank you, Mr. Louisiana, I appreciate that. A little 

bit of a mild rant here first, just to kind of set the stage why I do 

think we need to be more specific in timelines, just some of my personal experiences with people in my district. 

For example, a family owned business, called Magnolia Steel, 

employs about 50 people just a few miles outside of Omaha, but the 

family lives in my district. They wanted to expand. They were adding about 20 people. But they had to extend the building, and since 

they pour molten steel into parts that are being used in machinery, 

it took them 2 years and $2 million. The addition to the building 

was a $1 million project. So they actually spent more in compliance 

costs than they did for the actual structure. So I hear stories about 

that, and the fact that it took 2 years, and I think, that is a broken 

process, especially on a small—we are not talking a Toyota facility. 

We are talking about a metal shed, basically. 

And then another Omaha business that has another one in Ohio, 

it is a metal fabrication business, spent a similar amount of time 

99 

working with the Feds, the EPA again, on this one. Took a long 

time. Then, once they got all of the EPA and Federal permitting, 

and spent all the money for that, the State of Ohio, this plant happened to be in Ohio, they have one in Omaha as well, and the 

State came in and said, ‘‘Yes, but our rules are different, and you 

have to do things differently.’’ So now we have this conflict between 

State and Federal. 

And both of those owners told me of their extreme frustration, 

and that is the basis of trying to figure out a way to streamline 

this, to reduce the cost of permitting, because the guy that makes 

the steel parts, the first one I talked about, literally said, I was on 

the verge of just shutting everything down and just moving the 

plant to Mexico. That doesn’t benefit anybody. So I think it is in 

everyone’s best interests that we figure out a better way to streamline this. 

Mr. Walke, some of us are very skeptical about the EPA. And I 

had a personal issue, they had a new copper level for the State of 

Nebraska that was actually proposed to be lower than the natural 

copper levels in our water. And when I asked them directly, where 

is the science behind it? They said, well, we are just making assumptions due to our modeling, but I will get you that, meaning 

they didn’t have it. And then, lo and behold, about a year later, 

they came up with a study that said they were right. I love it when 

they make the numbers first, and then back it up with the science 

later. It leaves me a little skeptical. 

And then we can get into the modeling on health, and the fact 

that they say this coal fired plant reduces mercury emissions, but 

yet there hasn’t been one instance of high blood level of mercury 

in the citizens that were around that plant for 30 years. So sometimes we have to question, and that is our role. 

So, with that, one of the things that I hear from, and I am going 

to ask Mr. Weiss this, because no one has asked you a question 

since I have been here—— 

Mr. WEISS. I was hoping just to stay here. 

Mr. TERRY [continuing]. Very little—you seemed lonely over 

there. So part of this is that time period that we discussed, where 

there is maybe a change in the air quality standard. That has 

changed. They adapt to the new technology, or try to, but the guidance from the EPA seems to be non-existent, or slow. And I think 

that is probably the issue Magnolia Steel was caught up in, and 

why it took 2 years, is to get the guidance on how they actually 

comply. Do you see that as part of the problem here, as the guidance aspect of it, and what is the best way to reduce that? 

Mr. WEISS. I do. From a permitting engineer’s viewpoint, which 

is what I do for a living, what I would like to know is what do you 

want me to do to make the demonstration? And right now, in a lot 

of cases, that guidance doesn’t exist, and I use the fine particle 

standard as an example. I actually don’t know how to make the 

demonstration that EPA wants often. And I issue more permits, or 

do a lot more permitting work than a lot of people, and I don’t 

know how to do it. 

And that causes delays on two levels. One, it causes delays prior 

to even filing the application, because we have to go meet with permitting authorities, and try and understand what they want, and 

100 

not all State agencies are as good as Delaware. They don’t really 

know what they need, and that is a big issue, because you go meet, 

say, how do you want to do this? We don’t know. Even when the 

States issue the permits, they follow EPA guidance. So the States 

need EPA guidance as much as the regulated community, and it 

doesn’t exist. And I am sure that has caused delays, because I have 

projects that I am working on where that has caused delays prior 

to filing the application. We then file an application, and the comment is, well, that analysis not good enough. Well, we don’t know. 

We will know when we see it. OK, and that is a problem, OK? And 

that is a real problem in the process. 

So the way I read the Act is, let us get the guidance out, what 

do you want us to do? And let us not weaken air quality standards. 

Let us get the guidance out so the permitting community knows 

what we need to get done. And that would improve the process. 

Mr. WHITFIELD. Gentleman’s time has expired. At this time recognize Mr. Cassidy from Louisiana for 5 minutes. 

Mr. CASSIDY. Thank you, Chairman Whitfield. Ladies and gentlemen, I apologize, I have been running up and down, so if I am asking you redundant questions, it is just because I have been running 

up and down. And just to give a context, the context we all know, 

clearly we have a problem with job growth for working class, middle class America, and they have traditionally been employed in 

mining, manufacturing, and construction, which shale gas and upstream/downstream creates an incredible number of good jobs with 

good benefits in mining, manufacturing, and construction. 

But what I am hearing is that we have met the enemy, and he 

is the EPA. Now, I gather, Mr. O’Mara, you are not sure about the 

spill, but what did I read, as I was obviously quickly scanning, that 

the EPA, in 2011, when it said it was going to cover greenhouse 

gases, forecasted it would need to issue 900 new preconstruction 

permits per year, but in the 3 plus, only 166 have been done in 

total. This is you, Mr. Eisenberg? How many jobs would—and we 

have all these plans that would be for new projected plants. Can 

you give an estimate of how many jobs would have been created, 

had there been 900 issued? 

Mr. EISENBERG. Frankly, I don’t know that I can. You know, the 

real issue there, and I really am just curious about why this is happening, I did have a member that said, well, we got our permit 

pretty quickly, I don’t know where we fall into that, and we just 

permitted a facility. And he went back and he looked, and he said, 

well, we figured out a way not to trigger PSD. 

So what could be happening is that folks are building smaller 

projects that don’t trigger things at that threshold. Is that a good 

thing? I honestly don’t know the answer to that either. I mean, I 

don’t think it is. I think, if we have laws that are stopping us from 

going big, and from building big things, that is a problem too. 

Mr. CASSIDY. So assuming that there is economy of scale in some 

of these projects, and we are competing globally, and I regularly 

hear that China, with their lax environmental standards, are building just to build, to employ people, putting us at a competitive disadvantage, losing that economy of scale might hurt our workers, 

correct? 

Mr. EISENBERG. That is correct. 

101 

Mr. CASSIDY. That is remarkable. And, Ms. Gershman, I gather 

that you, in turn, are aware of these projects. Again, do you have 

any estimate of how many jobs are on hold because of the lack of 

certainty and timeliness, as regards approval? 

Ms. GERSHMAN. We have heard from some members that every 

day that the permit is not approved after that year timeline, they 

can cost up to $5 million a day. And that is because a lot of these 

facilities have already gone out, and they secured all of the construction folks. And they have gone out and they have created job 

creation programs for folks in the community to be the operators, 

and the pipefitters, and the electricians, and all of the support staff 

that goes into running these huge, complex facilities. And all of 

that is on hold while permits continue to be hammered out. And 

that is something that, they want to move forward, they are committed to it, and yet they can’t go ahead and hire those folks until 

they have work for these folks to do. 

Mr. CASSIDY. Now, what I know intuitively is that if we want to 

improve wages for folks, and we create a lot of competition for construction workers, their wages are going up. 

Ms. GERSHMAN. That is correct. 

Mr. CASSIDY. It is just because if you need a top-flight welder—— 

Ms. GERSHMAN. That is right. 

Mr. CASSIDY [continuing]. She is going to be able to bid her services, frankly. 

Ms. GERSHMAN. Exactly. And if there are no projects going forward, she will be waiting to get those services bid on. 

Mr. CASSIDY. Now, Ms. Kerrigan, I sponsored a bill called the 

Energy Consumers Relief Act, which was just focused upon—we 

had somebody from EPA the other day making a comment, and I 

am sure he regrets making it, that their economic projections are 

often flawed and unreliable. Well, thanks a lot, we have been banking on them for some time. And the whole point of my Consumer 

Relief Act was to bring transparency to these major rules. 

Let me just ask, knowing that others have asked it, if all you did 

was bring transparency, OK, this is what you have to go on what 

Mr. Weiss said. I say Weiss, not Weiss. I apologize if I—Weiss. Seymour Weiss assassinated Huey P. Long, which happens to be how 

I am so familiar with the name, as long as I am Mr. Louisiana. So 

it looks as if there is transparency. That in itself would allow companies to plot out. Well, we know it is actually not going to take 

a year, it will take 18 months, and so therefore we can do all our 

permitting, in light of the expanded timeline, something like that. 

Would you agree with that? 

Ms. KERRIGAN. Yes, I do. I agree with that. And, again, if you 

have more transparency, and particularly the elements that are addressed in this bill, I think that will improve performance, in terms 

of expediting, you know, the permits, and then that creates certainty, you know, for businesses and investors. 

Mr. CASSIDY. And jobs for working Americans. 

Ms. KERRIGAN. Absolutely. 

Mr. CASSIDY. Mr. Weiss, and I was just intrigued, you do all this 

work, and yet you sometimes don’t really know how EPA’s progressing? 

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Mr. WEISS. Well, I don’t know how EPA wants us to do the analysis. 

Mr. CASSIDY. That blows my mind. I mean, because—— 

Mr. WEISS. Mine too, so—— 

Mr. CASSIDY. Yes. It seems fairly straightforward that if you are 

going to say, OK, we are going to have these many shale, you 

know, related mining opportunities, or plants using natural gas as 

a feed stock, that you should be able to say in a spreadsheet, we 

give you this, we give you this, we give you this, and here are the 

variables we will define later. But I gather there is nothing such 

as that? 

Mr. WEISS. Right. Your amazement is the same as my clients’. 

Mr. CASSIDY. So, again, when it comes to job creation for the 

working Americans, we are having the hardest time. We have met 

the enemy, and it sounds like the enemy could be the EPA. I yield 

back, and thank you. 

Mr. WHITFIELD. Well, you know, Mr. Cassidy has touched on 

this, Mr. Weiss touched on it, and the crux of the issue is that specific point. A new standard is decided on at EPA, and EPA has 

been very aggressive. And then the guidance does not come out for 

some time later, sometimes years later. And so you are sitting 

there, wondering about the modeling, wondering about the emissions. The guidance document is extremely technical, and so no one 

has the guidance that they need. And that is the crux of the issue. 

So, I mean, is it unreasonable to request EPA to come forth with 

the guidance when they come forth with the new standard, or is 

that something that is impossible to do? Would you all make a brief 

comment on that for me? I mean, what is the big issue about trying 

to do that? 

Mr. EISENBERG. I mean, that is certainly how we look at it. I 

don’t see this as being unreasonable at all. We would hope that 

EPA would put it out in a timely fashion, and we would hope that 

there is a way to—— 

Mr. WHITFIELD. I mean, that they don’t do it. Do you have an 

idea, Ms. Kerrigan? 

Ms. KERRIGAN. I have no idea. I mean, we would love to hear, 

and I am sure you would, from the EPA on this. It seems like it 

is something that can be done. You know, they are good at regulating, and, you know, this is what they—— 

Mr. WHITFIELD. But that is what Mr. Terry and others were talking about. These manufacturers, or people who want to invest, and 

even the States lack the guidance and—— 

Ms. KERRIGAN. Um-hum. 

Mr. WHITFIELD [continuing]. So the uncertainty is there, and you 

are worried about the lawsuits, you are worried about spending the 

money. And, Mr. O’Mara, do you have any thoughts, or Mr. Walke, 

or—— 

Mr. WALKE. Well, it, unfortunately, takes a lot of time and resources to adopt these implementation rules and guidance, and you 

can look at the history of the program from the Reagan administration, and Bush. It is not a partisan issue. It is a matter of just the 

amount of time it takes. 

One thing I want to mention that hasn’t been mentioned yet 

today is, much of the implementation rules and guidance that evenVerDate Mar 15 2010 09:31 Nov 19, 2014 Jkt 037690 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 F:\113-147 MANUFACTURING ASK OK 11-18-14\113-147 MANUFACTURING PDF MADE
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tually come out from EPA don’t have anything to do with permitting at all, so there is a little bit of a disconnect in the bill. The 

bill is written kind of overly broadly to say, if EPA fails to issue 

all, or any, implementation rules or guidance, we are going to allow 

permitting to proceed in violation of a newly revised standard. So 

there is a disconnect that kind of augments these unintended consequences that we have been talking about. 

But I think the simple answer to your question, Mr. Chairman, 

is it takes a lot of time, and involves a lot of consultation. There 

is complexity. The question is, you know, who bears the burden of 

that? Should the public suffer, you know, heavier polluted air, or 

is there another solution to a valid problem? 

Mr. WHITFIELD. Yes. Mr. O’Mara? 

Mr. O’MARA. Thank you. I mean, there are two different ways to 

look at the lack of guidance in the beginning. I mean, there is the 

way that Delaware has approached it, where we are going to go full 

steam ahead. We are not going to wait for it. We are going to, you 

know, be very clear with industry. We are going to, you know, consult close with the EPA, but we are not going to wait for them. And 

there are other places that, you know, will ask for guidance all the 

time, and kind of have this paralysis where they won’t issue permits until the guidance is issued, and I think you have heard some 

of those nightmare stories. 

I mean, I would like to actually see some additional either guidance, or, use a different word, some additional direction to the 

States to move ahead. There is no reason to wait for EPA guidance, 

and safe to do that in good faith, with some kind of reasonableness 

to the adherence to the NAAQ standard should have some kind of 

sovereignty, or some kind of deference in the decision-making process in the interim period. I mean, a process like that would actually achieve air quality goals, and give the manufacturers at this 

table more certainty, and the State regulators that have the capacity can work with folks one on one, instead of decisions coming out 

of DC. 

Mr. WHITFIELD. Yes. 

Mr. O’MARA. And so maybe that is some area of potential commonality, because—— 

Mr. WHITFIELD. Yes. 

Mr. O’MARA [continuing]. But you don’t want States to feel paralyzed, where they don’t feel like they can go with a permit, and also 

these other adverse impacts. 

Mr. WHITFIELD. Right. Mr. Weiss, do you have any comment? 

Mr. WEISS. Thank you. The process of adopting a national ambient air quality standard was also a long, and consultative, and time 

consuming process, and I really don’t understand why the guidance 

can’t be worked on simultaneously during that process. They know 

the standard is coming. In the case of fine particles, they knew that 

precursor emissions were going to be a big issue in the fine particle 

standard. And, really, we should have a way of analyzing precursor 

emissions, because they are a major contributor, and that all could 

have been worked on during the adoption of the ambient air quality standard, and one shouldn’t forget that. 

Mr. WHITFIELD. Ms. Gershman, do you have a comment? 

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Ms. GERSHMAN. Yes. I agree with Mr. Weiss. I think really what 

we are trying to get at here is to require EPA to give a little more 

thought through the entire NAAQ setting process as to what happens after that NAAQ number is put out there. And we are just 

looking for some certainty as to—— 

Mr. WHITFIELD. Yes. 

Ms. GERSHMAN [continuing]. What happens at that point. 

Mr. WHITFIELD. Well, thank you. Mr. Rush, you probably—— 

Mr. RUSH. Mr. Chairman, the question I have is not to the panel, 

it is to you. Are you going to allow EPA to come before this subcommittee prior to a markup? I think that it is very important that 

the EPA be allowed to respond to some of the issues raised by 

members of this subcommittee, and some of the panelists. And so 

it is my opinion that, and the question is, whether or not it is unreasonable to allow the EPA to come before this subcommittee tomorrow, Thursday, next week, before we proceed to marking up 

this bill? The EPA needs to have an opportunity to respond. So is 

it your intention to allow the EPA an opportunity to come to testify 

before this subcommittee on this matter? 

Mr. WHITFIELD. I don’t know if we are going to have another 

hearing for EPA or not, but we are in discussions with EPA. They 

have indicated that they are willing to work with technical assistance. And I don’t even know when we are looking at a markup, 

but, you know, I personally don’t want to mark up a bill that is 

not going to have some genuine support. And some of these suggestions about additional sovereignty for States and so forth, so that 

they have more authority, is something that I think has some 

merit, because I think all we are looking for is a little certainty. 

But we look forward to working with you as we move forward on 

it. 

Mr. RUSH. Thank you, Mr. Chairman. 

Mr. WHITFIELD. Thank you all, and that concludes today’s hearing. I want to thank all of you for taking your time to come up and 

visit with us, and we appreciate your expertise, and your thoughts 

on this important subject. We will keep the record open for 10 days 

for any additional materials that might need to be administered. So 

that will conclude today’s hearing. And, by the way, our staffs may 

be in touch with some of you over the next few days or weeks, as 

we try to see if there are ways we can improve this draft bill. So 

thank you very much. Hearing is adjourned. 

[Whereupon, at 12:09 p.m., the subcommittee was adjourned.] 

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