Document 100vGB15Nk1nbmd7o6jJqVx7K
American Forest & Paper Association
AF&PA Meeting with EPA
Sierra Club FOIA Request: 2025-EPA-04193
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Overview
Key Priority Final Rules
1. PM NAAQS (standard and air permit program)
Good Neighbor Plan 3 MACT revisions (2 pulp and paper; 1 wood panels) CERCLA Listing of PFOA/PFOS CWA Rules (WA HHWQC, Approval Rule, Tribal Reserved Rights Rule) SDWA MCL on PFAS Biomass -- Treasury Clean Electricity Tax Credits
Loper Bright Regulatory Framework
Market Failure Analysis; Benefit-Cost Analysis; Sound Regulatory Science
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American Forest & Paper Association
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Sierra Club FOIA Request: 2025-EPA-04193
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Administrator Zeldin's March 12 Deregulatory Initiatives
We support the Administrator's goal for common sense, achievable regulations.
We have a long track record seeking common sense solutions working with OAQPS
Want timely and lasting rules.
Our rules of greatest concern violate multiple EOs, including E.O. 14219, E.O. 14192, and E.O. 14154.
Ambitious agenda -- how can we help?
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1(a) PM NAAQS Standard
Please reconsider Biden EPA unattainable 9ug/m3 standard:
near average U.S. background (8 ug/m3) - no "headroom" (typically 3 ug/m3) to allow modernizing U.S. manufacturing, even in attainment areas (pink on map).
Blocks efficiency upgrades that would both increase U.S. competitiveness and jobs + reduce emissions per ton of production.
Use Loper Bright "best reading;" under CAA 109(d), consider "all relevant factors," including attainability and cost.
Scientific uncertainty kept standard at 12 ug/m3 in 2020
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Prior PM2.5 NAAQS (12 pem3) left room for economic growth
Projects in non-attainment areas (red) will require LAER, offsets/alternatives NSR analysis, and SIPs with RACT.
Before construction is permitted, new projects must use EPA models to show attainment with NAAQS.
2020-2022 Annual PM2.5 DV Headroom to Threshold
Nonattainment E 1-3 ug/m3 [71 ughn3
Map Notes/Approach: Used maximum PM25 Design Values (DVs) for each monitored county Calculated non-monitored counties values using geospatial statistical interpolation ("kriging")
"fills-in" estimates for locations between the monitors. Five (5) closest monitored values used to estimate non-monitored county values using inverse-
distance weighted averaging method.
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EPA's modeling guidelines represent continuous operation of all new and modified sources at the maximum allowable emission rate after best available controls and typically simulated a project's future annual PM25 ambient contribution to be 1-3 ug/m3.
Many areas of the country (green) have background levels of 6 to 9 ug/m3.
With a standard of 12 ug/m3, areas with background of 9 ug/m3 or less will have enough "headroom" to accommodate the typical contribution from the project (e.g., 3 ug/m3).
Impact: Most projects can be built.
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Immediate Impact ofPM2.5 NAAQS at 9.0ilem3
New or expanded manufacturing projects unachievable in red + pink colored areas
Before construction is permitted, new projects must use EPA models to show attainment with the NAAQS.
EPA's modeling guidelines require assuming continuous operation of all new and modified sources at the maximum allowable emission rate using best available controls and typically simulate a project's future annual average PM2.5 ambient concentration to be 1-3 ug/m3.
Many PM25 "attainment" areas have background levels of 6 to 9 ug/m3.
2020-2022 Annual PM2.5 DV
Headroom to Threshold
Non attainment O 1-3 ug/m3 O 3+ ugfrn3
With a standard of 9 ug/m3, attainment areas with background as low as 6 ug/m3 (pink) won't have enough "headroom" to
Map Notes/Approach: Used maximum PM25 Design Values (DVs) for each monitored county Calculated non-monitored counties values using geospatial statistical interpolation ("kriging") "fills-in"
accommodate the ambient concentration conservatively simulated for the project (e.g., 3 ug/m3).
estimates for locations between the monitors.
Impact: Violation of the NAAQS is
Five (5) closest monitored values used to estimate non-monitored county values using inverse-distance
predicted, which effectively stops the
weighted averaging method.
4 oat
project.
American
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Failed Permits from PM2.5 NAAQS Changes
36 PSD permits from 13 industries in 19 states
Annual Average PM2.5 (g/m3)
At 11 ug, 36% fail At 10 ug, 50% fail At 9 ug, 78% fail EPA's new NAAQS At 8 ug, 86% fail
8 ug/m3 I
86%
(31)
I
14% (5)
Percentage of Projects Impacted as PM2.5 Lowers
(36 PSD Permit Projects Total)
11 ug/m3
Less than 8 ug
Massive investments and job losses at stake!
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9 ug/m3
7
lOug/m3
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1(b). Modernize PSD Air Permitting Program - Critical Steps
1. Adjust modeling receptors (considering true exposures based on
time and duration); revise "ambient air" definition ("has access")
2. Authorize variability of emissions and operations in modeling -- use probabilistic tools
3. Expand efforts to better estimate and measure PM emissions
4. Expand efforts to accurately reflect ambient background for designations and PSD permitting, such as exceptional events/ "atypical events" and monitor bias (FEM)
Use Appendix W as vehicle -- detailed
12/21/2023
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American Forest & Paper Association
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2. Good Neighbor Plan: Paper Mill Boilers Reconsideration
Supreme Court stayed GNP (Ohio v. EPA, June 2024). Appreciate March 12 EPA announcement -- states should be given more
discretion on interstate transport and their SIPS. EPA arbitrarily included Paper Sector in GNP under NPRM's 2-prong test:
1. Not significant air quality contributors -- impact fewer than 10 monitors
2. Not cost-effective for Paper Sector to control NOx - $50K/ton; >5X the threshold in the proposal ($7,500); $425 million in capital
Possible controls for many gas and all coal boilers (SCR) are not proven. Poor quality inventory and assumptions for non-EGUs/paper mills.
We recommend dropping paper boilers.
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Sierra Club FOIA Request: 2025-EPA-04193
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3. MACT Reviews: Use Tools in MACT Tool Chest for Three Forest Products rules
Work practices and other approaches could result in cost-effective standards AND satisfy traditional "HAP gap-filling" requirement
CAA section 112(d)(6) says regulate as "necessary": EPA must consider all relevant factors, such as costs and risk, in deciding WHETHER to set new MACT standards.
Loper Bright and Michigan require EPA to balance costs and risk reduction benefits, whereas here, statute does not explicitly prohibit.
The data collection for pulp and paper mills needs a mid-course correction -- less HAP testing and simpler questionnaire.
EPA should finalize the wood products MACT with improvements.
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Work practices under 112(h)
HAP Surrogacy
No gap or no gap worth filling. "Not known to be Emitted"
Other Tools
Jobs, Economic Development and Global Competitiveness
101(b)(1): Promote air quality and productive capacity of the nation
AMERICAN WOOD COUNCIL
Data not suitable for standard-setting
12 MACT Tool Chest
Clean Air Act: Follow the statute, process and Loper Litigation: Sustainable Rules
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Testing, monitoring (even fenceline), and new data (like IRIS values) as a sword/shield
Su bcategorization
112(d)(4) Health-based Emission limit
112(d)(6) "as necessary": relevant factors (cost and benefits)
i Benefits and disbenefits
112 structure and goals risk and cost
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4. CERCLA Listing of PFOA/PFOS
Host of adverse consequences, including preventing safe and beneficial use of papermill residuals as substitutes for fertilizers. CERCLA not right tool for the job.
We recommend EPA withdraw final CERCLA rule. Use Loper Bright "best reading" Consider all relevant factors, including costs (list as may be "appropriate").
Sierra Club FOIA Request: 2025-EPA-04193
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5(a). WA HHWQC Rule
Biden EPA 2022 final rule on Human Health Water Quality Criteria for Washington State will lead to unattainable water permit limits for industrial and municipal facilities in Washington State. Would cause water permit gridlock, along with Tribal Reserved Rights Rule.
We recommend EPA repeal and replace the 2022 WA HHWQC rule, which is legally flawed and unattainable.
Sierra Club FOIA Request: 2025-EPA-04193
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Risk Level
Comparison of Risks of Dying to Regulatory Allowable Risk Levels
Risk of Death
Allowable Risk (Cancer Risk)
EPA 2000 Methodology
Washington Water Florida Proposed EPA Drinking
Quality
Water Quality
Water
EPA Superfund & State Cleanups
1 in 10 (1 x 10-1)
1 in 100 (1 x 10-2)
Cancer (1 in 4) Heart Disease (1 in 5)
Car Accident (1 in 85)
Falls (1 in 200) Casino worker (1 in 250)
EPA's previous risk policy
1 in 1,000
(1 X 10-3)
Acrylamide in food (1 in 1,800) Bike accident (1 in 5,000)
1 in 10,000 (1 x 10-4)
1 in 100,000 (1 x 10-8)
Lightning (1 in 174,000) Asteroid (1 in 333,000)
1 in 1,000,000 (1 x 10-6)
Sub-populations k (1 in 10,000)
MI
1 in 100.000 General Population 1 in 1.000.000
Sub-population
(1 in 1,000,000)
General population (1 in 1,000,000)
Arsenic (5 in 10,000)
EPA Drinking Water lir
1 in 10,000
i lk EPA Superfund Range
lir
1 in 1,000,000 No action needed
1 in Decreasing 10,000,000
Risk
(1 x 10-7)
Benzene (1 in 10,000,000)
1 in 100,000,000 (1 x 10-8)
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Sierra Club FOIA Request: 2025-EPA-04193
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5(b). Midnight Approval Rule
On December 20, 2024, EPA -- improperly and contrary to Clean Water Act requirements - issued a
federal rule (
) approving an extreme Washington State regulation to revise the state
water quality standards (state rule).
The Washington State regulation was issued in a highly truncated and rushed process, without any analysis of cost or attainability.
EPA never should have approved this state rule because, contrary to the Clean Water Act, the standards in this state rule are neither measurable, nor attainable even with cost-prohibitive control technology.
EPA should repeal this midnight approval rule.
Sierra Club FOIA Request: 2025-EPA-04193
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5(c). Tribal Treaties Reserved Rights Final Rule
Biden EPA's final Tribal Reserved Rights Rule (RIN: 2040-AG17), like the WA HHWQC Rule, could lead to unattainable water quality standards in any states with tribal waters.
November 2024: AF&PA joined an industry coalition amicus brief supporting legal challenge to TRR rule by a group of states, led by ID, in U.S. District Court for the District of North Dakota.
February 2025: Court issued order granting States' motion to hold the case in abeyance for 90 days.
We recommend EPA propose and finalize a new rule to withdraw the Tribal Reserved Rights Rule, which is legally flawed and jeopardizes water permits needed to operate U.S. manufacturing and municipal facilities.
In the ongoing litigation, EPA should confess legal error, as the rule exceeds EPA's statutory authority and is arbitrary.
Sierra Club FOIA Request: 2025-EPA-04193
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6. Safe Drinking Water Act PFAS Maximum Contaminant Level (MCL)
April 2024: EPA final rule establishing PFAS maximum contaminant levels, including for PFOA and PFOS levels set at 4 parts per trillion.
Rule applies to public water systems. Paper mills sometimes serve as small public water systems for workers and local communities.
Any drinking water MCL should be consistent with SDWA's requirements, including for quality of science and data, as well as consideration of costs to all categories of public water systems.
We recommend EPA ensure the National Primary Drinking Water Standards for PFAS are set at workable levels.
Sierra Club FOIA Request: 2025-EPA-04193
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7. Biomass Treasury Clean Electricity Tax Credits
Pulp, paper and wood products mills are the largest industrial producers and users of highly efficient bioenergy (electricity and heat), including bioelectricity for the grid.
Since its 2010 Tailoring Rule, EPA created -- and left unresolved -- lingering regulatory uncertainty for the carbon neutrality of our bioenergy. This leaves U.S. mills at a competitive disadvantage and impedes innovation.
In a midnight rule on clean electricity tax credits (RIN: 1545-BR-17), the Biden Treasury Department refused to include our mills, contrary to:
Loper Bright's required "best reading" of the Inflation Reduction Act,
Congressional intent,
Science and rational policy, and
President Trump's policy for U.S. energy dominance.
This disrupted a longstanding energy efficiency tax credit our industry had always qualified for.
Treasury should list energy systems at forest products mills as qualified facilities in its Annual Table and provide clarifying guidance.
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Loper Bright Regulatory Framework Part 1: Legal/Policy Overview
Sierra Club FOIA Request: 2025-EPA-04193
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Opportunity: New Loper Bright Framework Can Be Implemented Through Benefit-Cost Approach
State Farm (1983) to Entergy v. Riverkeeper (2009) to Michigan v EPA (2015) - established emerging cost-benefit default rule: to avoid
arbitrariness, agencies must consider all relevant factors including costs - unless clearly
prohibited by Congress.
Loper Courts:
(1) ensure the "best reading"; (2) fix the bounds of delegated authority and ensure "reasoned
decisionmaking"; and (3) may accord "due respect" if agency statutory interpretations
consistent, thorough, valid, persuasive.
In Loper Bright --'citing Michigan -the cost-benefit default rule
informs both the "best reading" of statutes and "reasoned
decisionmaking." Use of BCA also should merit "due respec
Thus, agencies implementing regulatory programs through BCA should thrive under Loper Bright.
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Loper Bright, Part 2: Case Study Review of Three Regulations
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Case Study Overview
Loper-Bright requires courts to determine "best reading" of statutory language.
Some statutory text in the Clean Air Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Safe Drinking Water Act refer to the science of risk assessment and the use of data from underlying scientific disciplines such as toxicology and epidemiology.
Some of the statutory text has technical and scientific meaning, which can be characterized from the technical and scientific literature.
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A Practical Approach: Combining "best reading" and Science/Technical Information
A joint effort, AF&PA and NCASI will produce case studies that both:
Three rules will be reviewed:
1) analyze specific agency rulemakings to determine if scientific and technical elements are consistent with a 'best' scientific interpretation of the statute;
2) provide an example framework that can be used to examine additional rulemakings for scientific and technical aspects of 'best' interpretation of statute.
- OAR, PM2.5 National Ambient Aft Quality Standard (NAAQS)
- OLEM, CERCLA designation of PFOS and PFOA as hazardous substances
- Office of Water, Maximum Contaminant Levels (MCLs) for Per- and Polyfluoroalkyl Substances (PFAS)
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Project Goals and Preliminary Results
Bring technical/scientific definitions to inform
interpretations of statutory text to guide how
rulemakings, analyses, and other technical information are
developed at EPA.
Assist stakeholders to offer a scientific perspective for
determining "best reading" of statutory text supporting regulatory decisions.
Preliminary results reviewing 12 scientifically-meaningful terms defined in the Clean Air Act (CAA) and an additional three from the Safe Drinking Water Act (SDWA) show inconsistent usage across key guidance and implementation materials. For example, of the 12 CAA terms, only two are found in key guidance materials.
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Market Failure Analysis; Benefit-Cost Analysis; Sound Science
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Market Failure Analysis
First principle of regulation: establish "compelling public need."
"material failures of private markets" (Clinton E.O. 12866, Sec. 1(a))
Consider whether an imperfect (but perhaps self-correcting) market is more or less preferable to potential distortions from government intervention.
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-,
If regulation is warranted, consider market-based mechanisms, performance-based standards, providing information, etc.
Foster efficiency and innovation.
E.g., EPA air emissions trading; FDA trans-fat labeling.
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Improve Benefit-Cost Analysis, and Regulatory Science
BCA: Address limits to current agency BCAs.
E.g., EPA focus is only on engineering costs.
Add, e.g.,: competitiveness benefits, job savings, efficiency gains that can improve performance (lower emissions per ton of production).
Consider full opportunity cost (e.g., real return on investment), discount rate, etc.
Science: Address foundation of regulation -- ensure process for determining whether a chemical/substance causes an adverse effect to health or environment includes systematic review to base decisions on evidence with acceptable confidence (i.e., sound statistical methods, model assumptions, and objectivity, minimizing uncertainty and bias).
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