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Return to Advocacy > Regulatory Comments > Environmental Protection Agency (EPA)
November 26, 2008
Docket ID No.: EPA-HQ-OAR-2008-0318
Air and Radiation Docket and Information Center
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Ave., NW
Washington, DC 20460
a-and-r-Docket@epa.gov
Re: The following are comments submitted on behalf of the Industrial Minerals Association – North America (IMA-NA) in response to the Environmental Protection Agency’s Advance Notice of Proposed Rulemaking for Regulating Greenhouse Gases Under the Clean Air Act
The Industrial Minerals Association – North America (“IMA-NA”) appreciates the opportunity to offer the following comments in response to the Advance Notice of Proposed Rulemaking (ANPR) on Regulating Greenhouse Gases under the Clean Air Act (CAA) which was published in the Federal Register on July 30, 2008.
IMA-NA is an association that represents forty-six companies that produce industrial minerals such as ball clay, barite, bentonite, borates, calcium carbonate, feldspar, industrial sand, mica, soda ash, talc, and wollastonite, and sixty associate member companies that provide goods and services to the industry. IMA-NA typically represents seventy-five percent or more of the production for each of these minerals in the United States. IMA-NA members have demonstrated a commitment to the goals of sustainable development and operating in an environmentally friendly manner. If the approach taken by the Advance Notice were to become regulatory policy, it would impact our industry severely.
The United States enjoys the most environmentally benign processes for production of industrial minerals in the world. Industrial minerals are critical to the manufacturing processes of many of the products that we use every day. They are used in the production of glass, ceramics, paper, plastics, rubber, detergents, insulation, pharmaceuticals, and cosmetics. They also are used to make foundry cores and molds used for metal castings, in paints, filtration, metallurgical applications, refractory products and specialty fillers. Many products that are manufactured in the U.S. that help to reduce greenhouse gases require industrial minerals as components in their manufacturing processes.
IMA-NA fully supports a program to manage climate change and greenhouse gases (GHGs) that will result in measurable reductions in GHG emissions while considering tangential impacts to other facets of our energy and economic structures on both a regional and global scale. In that context, the IMA-NA submits that the Environmental Protection Agency (EPA) should refrain from moving ahead with any proposed regulation that would attempt to regulate greenhouse gases (GHGs) under the Clean Air Act. While we believe the EPA’s decision to issue the ANPR was worthwhile, as it has opened the door to allow for serious dialogue on this issue, it has also made it abundantly clear that a satisfactory approach does not yet exist to regulate GHGs under the CAA. For several significant reasons, the CAA is an inappropriate tool for regulation of greenhouse gas emissions. While we acknowledge the Supreme Court found in Massachusetts v. EPA, 549 U.S. 497 (2007) that the CAA may be used by EPA to regulate GHG emissions, we do not believe that the CAA framework is the appropriate scheme to regulate GHG emissions.
The ANPR raises a substantial number of serious questions, but provides little in the way of answers and direction. First, it is clear that there is a high likelihood that CAA regulation of greenhouse gases would not result in the desired near-term regional greenhouse gas emission reductions. Attempting to regulate GHGs on a local or regional level while ignoring the global aspects of these pollutants (e.g., leakage) is a strategy that has many significant technical and policy obstacles. Furthermore, the costs to the industrial and manufacturing base in the U.S. are anticipated to be substantial and therefore, should not be incurred without development of a strategy that would assure a high likelihood of success. The CAA has as its underpinnings a regional approach, and in its current format does not provide that assurance.
The ANPR includes approximately 400 open-ended legal and policy questions EPA would have to address before being able to proceed in good faith with such a massive rule that stands to impact such a broad area. A CAA GHG rule of the magnitude suggested by the ANPR could require hundreds of rulemakings and could ultimately result in a decade or more of litigation. There are simply too many outstanding issues and obstacles, and proceeding toward a formal rule prior to answering the questions raised in the ANPR would not be prudent public policy.
The ANPR is an Economy-wide Regulation
IMA-NA has several serious concerns about the content of the ANPR drafted by EPA. The EPA in drafting this ANPR was acting under a directive from the U.S Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007) in which the Court made two key findings. First, it found that GHGs fall within the very broad definition of “air pollutant” found in CAA section 301, thereby giving EPA authority to regulate GHGs under the CAA. The second finding was that EPA must determine one of the following three options:
1) that GHGs cause or contribute to air pollution which may be reasonably anticipated to endanger public health or welfare, as required by section 202 (a)(1);
2) that GHGs do not contribute to climate change; or
3) that EPA provide a reasonable explanation as to why the Agency cannot or will not exercise its discretion to make an endangerment finding.
The scope of the endangerment finding required by the decision was limited to the issue of whether greenhouse gas emissions from any class or classes of new motor vehicles or new motor vehicle engines cause, in EPA’s judgment, endangerment. The ANPR goes well beyond these “mobile sources” by providing a roadmap to greenhouse gas regulation throughout the economy. An endangerment finding in this case would lead to a regulatory cascade which could easily lead to regulation of a substantial number of insignificant stationary sources that never have been subject to the CAA requirements, thus increasing the costs associated with compliance and subjecting these sources to the time-consuming permitting processes.
The CAA never was intended to reach into the entire economy; however, relying on the CAA as the tool to regulate GHGs - as suggested by the ANPR - would do just that by applying it to “all sources of greenhouse gases.” This potentially could include boats, cars, planes, trains, trucks, office buildings, tractors, motorcycles, schools, hospitals, data centers, farms, and even lawnmowers.
There are many who believe that EPA is overstepping its authority, including the EPA’s own Administrator, Stephen Johnson. Administrator Johnson addressed the ANPR with the following:
“I believe the ANPR demonstrates the Clean Air Act, an outdated law originally enacted to control regional pollutants that cause direct health effects, is ill-suited for the task of regulating global greenhouse gases. Based on the analysis to date, pursuing this course of action would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations.”
This point was echoed not only throughout the Administration, but also by high ranking members of Congress. Earlier this year, House Energy and Commerce Committee Chairman John Dingell (D-MI) made the following statement at a hearing regarding possible efforts by EPA to regulate greenhouse gases via the CAA:
“We are looking at the possibility of a glorious mess being visited upon this country …This is not what was intended by the Congress and by those of us who wrote the [Clean Air Act] legislation… We are beginning to look at a wonderfully complex world, which has the potential for shutting down or slowing down virtually all industry and all economic activity and growth.”
What makes that statement even more significant is that Chairman Dingell was one of the architects of the CAA. As such, Chairman Dingell holds a position of great authority in consideration of Congressional intent; and from his statement, it is clear that the CAA never was intended to address global air quality issues.
Regulatory Gridlock
According to the U.S. Chamber of Commerce, EPA currently issues permits to fifteen thousand businesses under the CAA. If GHGs were to become regulated pollutants under the CAA, it is estimated that more than one million new permits would have to be issued. EPA would be required to undertake numerous time-consuming regulatory proceedings throughout this process, which would be exacerbated by the near-certainty of litigation. The flood of applications which would ensue from the dramatic increase in new permit requirements would overwhelm the limited staff resources of EPA and the state agencies. The result would be irreparable harm to the economy from delays associated with waiting for permits, increased paperwork burdens, and overall economic uncertainty. EPA has neither the manpower nor the financial resources to establish such a new bureaucracy.
Furthermore, if EPA were to issue an endangerment finding for motor vehicles under Section 202 (a)(1), this action very likely would lead to mandatory National Ambient Air Quality Standards (NAAQS) and New Source Performance Standards (NSPS) for carbon dioxide as well
as trigger either non-attainment New Source Review or Prevention of Significant Deterioration (PSD) coupled with Title V permit obligations for hundreds of thousands of previously unregulated businesses. In turn these standards and obligations likely would have a significant impact upon capital investment, causing additional delays in projects due to massive backlogs in the permitting process. State regulatory agencies already operate with a significant backlog of outstanding NSR and Title V permit applications. This backlog see a dramatic increase if GHGs were regulated under the CAA, through required permits for installations and modifications to many small stationary sources that are not currently subject to these permit requirements.
While it is recognized that no two endangerment tests are precisely the same, they generally call for similar elements, such as whether the emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. If EPA were to announce an endangerment finding of public health or welfare in one instance, it would be expected to be able to make the same claim in others as well, further impacting the economy.
Greenhouse Gases Should Not be Regulated by the Clean Air Act
The original intent of the CAA was clear. The CAA was meant to provide for regional laws and regulation throughout the United States. The CAA has no global reach and does not allow for any opportunities to coordinate a national response with other country’s actions. The issue of global warming is an international one and any attempt to regulate an issue that has global implications with a regulatory system that was meant to operate on a regional level would be poor and costly public policy. For example, effective implementation of a NAAQS for CO2 or other GHGs would be infeasible due to the global nature and long residence time of these gases in the atmosphere. A NAAQS might prompt requirements for carbon control, capture or sequestration and could have a significant detrimental effect to all sectors of the economy. In the end, these measures might not help achieve national attainment with the NAAQS due to emissions from unregulated countries and “leakage” of emission sources from these countries. Not only would this regulatory effort certainly fail, but the enormous costs associated with attempting to implement this type of regulation could make this one of the most expensive failed policies in our nation’s history.
Industries and businesses regulated within the U.S. almost certainly would encounter new and markedly increased competition from foreign sources if EPA were to impose unilateral GHG restrictions. This is certainly the case for our industrial minerals sector. Regulation of greenhouse gas emissions under the CAA would most likely come in the form of inflexible command and control mechanisms (despite the view of many experts that the best approach would be a flexible market-based approach).
In fact, many of the programs currently being considered by the United States Congress and throughout the world include cap-and-trade systems. This is an approach for which EPA has been challenged in the courts, including the Clean Air Mercury Rule (CAMR) and the Clean Air Interstate Rule (CAIR). In both of these cases the courts have deemed that EPA lacked sufficient legislative authority to regulate.
If GHG emissions were to be regulated, we should look to the U.S. Congress to establish the framework by which this complicated and resource-intensive change would take place. Congress can take into account technological feasibility concerns, international competitiveness for U.S. businesses, and create an effective cap-and-trade (or other) system that would allow industries in the U.S. to continue to operate here without one more incentive to move their businesses abroad. Any effort to regulate greenhouse gas emissions in the U.S. that does not adequately address “leakage” issues would only lead to U.S. based operations moving overseas where regulations are less stringent.
The U.S. industrial minerals industry participates in a highly competitive global market and our companies already are subject to some of the most stringent environmental laws and regulations in the world. The U.S. industrial minerals industry stands out among world producers because of its environmentally benign production processes.
By example, the natural soda ash from Wyoming trona producers enjoys an exceptional – and significant - environmental advantage over most of the soda ash available from other parts of the world. Soda ash is refined from the mineral trona, and is an essential raw material used in the manufacturing of glass, soaps and detergents, chemicals, and other industrial products. Natural soda ash, regarded as the standard for quality and purity, is found in sodium-carbonate-bearing brines and mined from the earth. By contrast, most of the soda ash produced outside the U.S. is manufactured synthetically, using a number of different chemical processes that inherently involve greater GHG emissions. Thus, imposing GHG emission requirements on U.S. soda ash companies without corresponding controls on their international competitors would have the unacceptable result of harming the U.S. economy while causing increased global environmental impact by greenhouse gases.
Conclusion
IMA-NA respectfully requests that the EPA refrain from moving forward with a proposed rule that would result in the CAA regulation of GHG emissions. For the reasons provided above, the IMA-NA believes that there can be no other conclusion outside of the fact that the CAA is an inappropriate scheme for regulating GHG emissions.
The following is a summary of our concerns about the approach suggested by the EPA Advance Notice:
• An endangerment finding by EPA on the narrow issue of whether greenhouse gas emissions from any class or classes of new motor vehicles or new motor vehicle engines cause an endangerment of public health or welfare, likely would create a domino effect of regulation under other regulatory programs such as NSPS, NAAQS, and others, that also depend upon endangerment findings.
• The regulatory gridlock that would ensue if EPA were to attempt to regulate greenhouse gas emissions under the CAA would be enormous. The number of permits for greenhouse gas emissions potentially would increase by over one million. EPA and the states have extremely limited resources currently, and implementing a program of this magnitude would simply not be feasible. There is also the near-certainty that this regulation would face numerous legal challenges should EPA attempt to move forward, simply based on the nearly 400 open-ended legal and policy questions within the ANPR.
• The CAA further lacks the necessary statutory design to implement a cost-effective greenhouse gas emission regulation, since it does not have the necessary global reach that would be required of any effective strategy. If EPA were to fail to address leakage issues, industries located and operating in the U.S. would be facing a significant competitive disadvantage. An ironic and unintended consequence would be the harm to the environment that would result from imposition of one-sided regulations upon the U.S. industrial minerals industry to reduce GHG emissions.
IMA-NA appreciates the opportunity to comment on the EPA Advance Notice of Proposed Rulemaking for regulating greenhouse gas emissions under the Clean Air Act. Thank you for your consideration of our comments and for your attention to this very important matter.
Respectfully Submitted,
Mark Ellis
President
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