Is 36 Page EPA Haze Rule for Northern Minnesota Regulatory Overkill?

30,000 word rule adds to 169,000 pages of federal regulations on the books

--The Environmental Protection Agency’s (EPA) proposed new regulations on six state taconite facilities have not only provoked concern among northern Minnesotans who depend on the mining industry for their jobs and way of life. The controversy has also brought home to Iron Range residents the real life consequences of federal government regulations in the form of a 36 page proposed rule buried deep in the Federal Register (Vol. 77, No. 158, pages 49,308-343).

Technically, it’s just another FIP (Federal Implementation Plan), little more than a footnote in thousands of pages of Washington rule-making, but it’s struck a nerve among some of the rank-and-file in this long-time mining region that continues to suffer during this prolonged economic recession.  The proposed new regulations would potentially affect the Minnesota taconite industry that employs nearly 4,000 workers and thousands more in mining-related jobs.

In the last decade, the Office of Management and Budget (OMB) reports that federal agencies added more than 38,000 new federal rules to the government’s books. Since 2001, the number of pages of regulations published in the Federal Register has increased 20 percent from 141,000 to 169,000 pages. The estimated cost of compliance is a controversial political issue, ranging from $53 billion for the most costly new rules (OMB) to more than $1 trillion overall (U.S. Chamber of Commerce).

By requiring stricter emissions controls, the proposed haze rule seeks to further reduce regional haze on the horizon in Voyageur National Park, the Boundary Waters Canoe Area and Isle Royale.

Whatever the pros and cons of the federal action, the Clean Air Act rule published on August 15, 2012 provides a classic example of the tangled maze of bureaucratic rules, record-keeping requirements and reviews routinely imposed on business and industry, largely out of sight and mind of most taxpayers.

The Regional Haze Federal Implementation Plan consists of more than 30,800 words and three dozen pages in the Federal Register.  Congress has passed laws designed to reign in regulatory overreach which must be taken into consideration as part of the rule-making process.  In drafting the haze regulations, EPA officials evaluated several such laws intended to streamline the process for industry and soften the impact on the local economy.

Case in point? The Paperwork Reduction Act, which as EPA states in the rule aims to minimize the “total time, effort or financial resources expended by persons to generate, maintain, retain or disclose or provide information to or for a federal agency.”  This includes time required to “review instructions, develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information” among other requirements on a much longer list.   There’s just one problem.  The anti-paperwork prohibition only applies to federal regulations that affect ten or more persons or facilities.  Since the haze rule would affect “just” six facilities in Minnesota (plus one in Michigan), they’re out of luck.

It was the same outcome for a “Regulatory Planning and Review” analysis mandated by a 1993 executive order. The proposed FIP does not meet the federal standard for relief from a “significant regulatory action”, again because the regulation applies to seven sources.

Then there’s the Regulatory Flexibility Act (RFA), a tool to cushion small businesses and other small organizations  from adverse consequences resulting from regulation. Déjà vu, all over again.

“After considering the economic impacts of this proposed action on small entities, I certify that this proposed action will not have a significant economic impact on a substantial number of small entities,” wrote Susan Hedman, EPA Regional Administrator in signing the order.  “The net result of the FIP action is that EPA is proposing emission controls on the indurating furnaces at seven taconite facilities and none of these sources are owned by small entities, and therefore are not small entities.”

The State of Minnesota fared no better when it came to the EPA’s application of a 1999 executive order to prioritize federalism in regulatory matters with states.  After rejecting and replacing a Minnesota Pollution Control Agency (MPCA) state haze control plan, the EPA concluded the federalism question was moot.

“This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government…because it merely addresses the State not fully meeting its obligation to prohibit emissions from interfering with other states measures to protect visibility established in the CAA (Clean Air Act),” according to the EPA filing.

The public comment period for the proposed EPA rule ends on September 28, 2012. But that may be just the beginning for one of the taconite facilities facing the haze regulations.  Mesabi Nugget recently informed local media that the company received a Section 114 ultimatum from the EPA for information on more than two dozen issues related to the Clean Air Act.

“It’s terribly time consuming and we don’t even know the purpose,” Jeff Hansen, the plant’s general manager told the Mesabi Daily News.  “The federal and state government agencies are too big and too powerful.”


                 Tips or comments? Contact Tom Steward at 612-354-2165.


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