BCA CALLS ON EPA TO WITHDRAW PROPOSED EPA SUPERFUND LISTING

Business Council of Alabama President and CEO William J. Canary this week submitted comments to the U.S. Environmental Protection Agency in opposition of EPA plans to add the 35th Avenue Site in Birmingham to the EPA's National Priorities List.

On behalf of BCA members, Canary wrote that "manufacturing members" especially "are deeply concerned" by a proposal based on a legally questionable "novel theory" to add the site to the National Priorities List.

The NPL list of known releases or threatened releases of hazardous substances, pollutants, or contaminants is intended primarily to guide the EPA in determining which sites warrant further investigation, according to the EPA.

The EPA has provided little information to potentially responsible parties, or PRPs, regarding a legal basis for Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA liability. The BCA's response says "an extremely broad air deposition theory appears to be the only plausible means for reaching some businesses that have no other connection to the release site."

The BCA says the EPA is applying a broad air deposition theory that will undermine the ability of regulated entities to rely on compliance with government-issued air emissions permits to avoid environmental liabilities. The uncertainty makes it harder to do business in America and will discourage businesses from relocating to, or remaining in, areas where they could be linked to surrounding ground contamination through air emissions, Canary wrote.

The EPA also did not closely cooperate with the State of Alabama in the listing process and violated its own procedures "in addressing this conflict" with the state.

BCA members also "strongly" oppose attempts by the EPA to use CERCLA as a vehicle for pursuing secondary political agendas, no matter how well-intentioned, Canary wrote. "The proposal and underlying materials indicate that the NPL listing process for the 35th Avenue Site is being used as a means of economic development for the community as part of the EPA's 'Environmental Justice' initiative," Canary wrote. "While economic redevelopment is a worthy endeavor, it is not the purpose of an NPL listing. The EPA's use of CERCLA for this secondary goal is a clear abuse of the EPA's statutory authority."

Canary concluded by saying the 35th Avenue Site listing is premature because of EPA Region 4's failure to adequately involve the State in its decision-making process concerning the site, the EPA's legally flawed air deposition theory that unjustifiably expands "arranger liability" and ignores CERCLA's "federally permitted" release exemption, and the improper use of CERCLA to force businesses to "undertake involuntary redevelopment efforts through the imposition or threat of PRP liability," Canary wrote. "For these reasons, the BCA is opposed to the EPA's proposal to include the 35th Avenue Site on the NPL and requests the EPA to withdraw it at this time."

Business Council of Alabama President and CEO William J. Canary said details in President Obama's State of the Union speech were disappointing from the perspective of the BCA's 2015 federal agenda. "The President's agenda is designed to grow the federal government, not grow American's paychecks," Canary said.

President Obama delivered the traditional State of the Union address on Tuesday. He said he plans to dramatically increase taxes, spending, and regulations.

The BCA's board of directors approved the Federal Legislative Agenda for 2015, which outlines priorities as selected by members. It includes support for overhauling the nation's tax code.

"Employers are drowning in red tape and mandates as it is, and the last thing we need is more federal mandates," Canary said. "A more successful approach to prosperity that will add jobs, innovation, and reduce the debt is to lower the tax rate and allow business to do what it does best - create jobs."

Canary said the President is suggesting a 2015 version of class warfare by lifting up one part of the population by bringing down another. In addition, states cannot shoulder the burden of rebuilding our nation's roads alone.

"Alabama needs a strong federal partner with a multi-year legislative plan to deliver transportation projects and keep America moving before the Highway Trust Fund goes bankrupt in May," Canary said.

Canary called on Congress and the Obama Administration to enact Trade Promotion Authority, reauthorize the Export-Import Bank, and confirm trans-oceanic trade deals, strike now on American energy abundance, improve transportation infrastructure, and reform taxes, improve education, and ease, not expand, rulemaking, Canary said.

The BCA's partner in Washington, D.C., is the U.S. Chamber of Commerce. Chamber President and CEO Thomas J. Donohue said President Obama's plan to increase taxes, spending, and regulation will slow economic growth and job creation, stifle innovation, and worsen our nation's debt and entitlement crises.

"What we really need is comprehensive tax reform that broadens the base, makes the code flatter and fairer, and eliminates loopholes," Donohue said. "That would do more to spur economic growth than arbitrarily raising taxes for some while providing tax credits to others."

The BCA is the exclusive representative in Alabama of the U.S. Chamber of Commerce.

Congressional legislation introduced this week would make it easier to reject damaging Obama Administration regulations. The Regulations from the Executive in Need of Scrutiny Act would give Congress the final say over any major rule with an annual economic impact of $100 million or more, The Hill reported.

Federal agencies would be required to submit major rules to Congress for approval before they could take effect. This would all but guarantee Republicans the ability to block dozens of controversial rules from the Obama administration. Sen. Rand Paul, R-Ky., and Rep. Todd Young, R-Ind., reintroduced the REINS Act Wednesday.

"If the Obama administration wants to impose regulations that effectively operate as laws on U.S. citizens, it is important that those citizens are made aware of how the laws come to be," Paul said in a statement.

The REINS Act passed the House in 2011 and 2013, the last time in a 232-180 vote. But it was not taken up by the Democratic-controlled Senate in the last Congress, the Hill reported. Republicans say Obama doesn't have the authority to make rules and that unelected federal bureaucrats should not have the ability to issue expensive regulations without congressional consent.

A new analysis from the U.S. Chamber of Commerce's Institute for 21st Century Energy shows the severity and breadth of state objections to EPA's proposed clean power plant rule. 

The Chamber guide summarizing state concerns with EPA's 111(d) regulations on existing power plants was released Thursday.

The analysis identifies 12 significant and common themes raised by states including Alabama ranging from rushed regulatory timelines (34 states), the legal basis of the rule (32 states), threats to reliability (32 states), and negative economic consequences (28 states).

The Business Council of Alabama is part of a coalition of business organizations representing more than 80 percent of the U.S. economy that commented on the proposed regulations. The BCA signed a letter from The Partnership for a Better Energy Future that was sent to the EPA in December.

BCA President and CEO William J. Canary in December expressed concern with the proposed rules in December.

Released last June by the Obama administration, the rules represent one of the largest and costliest regulatory actions in history. Last fall, stakeholders and the public were invited to submit comments to EPA for consideration.  All 50 states submitted comments.

"What is truly striking is the level of concern many states have regarding EPA's rule-whether they are blue states, red states, or purple states," said Karen Harbert, president and CEO of the Energy Institute.

The Chamber Institute said common areas of concern for states are technological achievability, mistakes and errors, interim compliance targets, lack of credit for early action, treatment of nuclear generation, lack of consideration for stranded costs, goals in comparison to new power plant rules, and estimates of plant generation capacity.

The complete guide-In Their Own Words: A Guide to States' Concerns Regarding the Environmental Protection Agency's Proposed Greenhouse Gas Regulations for Existing Power Plants-including appendices, can be viewed here.