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NRCA issues comments about regulating greenhouse gases under the Clean Air Act

On Nov. 28, 2008, NRCA submitted comments to the Environmental Protection Agency in response to the Advance Notice of Proposed Rulemaking (ANPR) on Regulating Greenhouse Gases Under the Clean Air Act (CAA). NRCA's comments follow.

November 28, 2008


Air and Radiation Docket and Information Center
Environmental Protection Agency
Mail Code 2822T
1200 Pennsylvania Ave., N.W.
Washington, DC 20460

Re: Regulating Greenhouse Gases Under the Clean Air Act Responding to Massachusetts v. EPA Docket ID: EPA-HQ-OAR-2008-0318

The National Roofing Contractors Association (NRCA) submits these comments in response to the Advance Notice of Proposed Rulemaking (ANPR) on Regulating Greenhouse Gases Under the Clean Air Act (CAA) issued by the Environmental Protection Agency (EPA) and published in the Federal Register July 30, 2008. NRCA is an association of roofing, roof deck and waterproofing contractors, as well as manufacturers, distributors, architects, consultants, engineers, government agencies and international members. It has approximately 4,200 members in all 50 states and 40 countries and is affiliated with 105 local, state, regional and international roofing contractor associations.

NRCA contractors are typically privately held small businesses though some can be quite large. They mostly do commercial work and perform an estimated 60 percent of all roof installations in the U.S. In a $30 billion to 40 billion domestic roofing market, NRCA member manufacturers produce billions of square feet of roofing material each year. Ducker Worldwide, a leading industrial research firm, found in 2003 that annual low-slope roofing systems material sales average over 5.7 billion square feet. This figure is for commercial roofing and does not include residential roof systems.

The ANPR is in response to the U.S. Supreme Court's decision in Massachusetts v. EPA. In that case, the Supreme Court ruled that the CAA authorizes EPA regulation of carbon dioxide (CO2) and other greenhouse gases and the agency must determine whether such emissions from motor vehicles endanger public health or welfare.

However, the ANPR transcends motor vehicles to take into account various petitions related to the potential regulation of greenhouse gas emissions under the CAA. As EPA acknowledges in the ANPR, a finding of "endangerment" for motor vehicles — a decision it is required to confront as the result of the Supreme Court's decision — would trigger not only vehicle controls but also invasive CO2 controls on buildings and other stationary emissions sources. Four regulatory programs that would be triggered by such a finding are: National Ambient Air Quality Standards (NAAQS); New Source Performance Standards (NSPS); Prevention of Significant Deterioration (PSD); and Title V (operating permits).

According to the U.S. Chamber of Commerce, NAAQS for CO2 would result in a scale-down of societal quality of life as every state in the union would have to grapple with nonattainment status and the penalties that result: loss of federal highway funding; punitive offsets to new construction on a 1:1 basis or more; and imposition of the strictest technology standards and pollution controls under the CAA. Also, NSPS would require the imposition of "best available technology" for new and existing stationary sources in a potentially limitless number of source categories.

Furthermore, regulation of CO2 under the CAA would, according to a chamber study, subject 1.2 million buildings in the U.S. to PSD permitting as a condition for new construction or modifications. This process can take six to12 months and cost, on average, $125,120 with a paperwork burden of 866 hours. If only 40,000 of the 1.2 million opt to try new construction or to make modifications, PSD compliance alone would cost more than $5 billion and require 17,320 full-time employees. Finally, these same 1.2 million entities would have to obtain Title V operating permits as a condition to their operations, which requires at least a $25-per-ton compliance fee and grants a 60-day window for any U.S. citizen to challenge the permit by way of a citizen suit. Together, PSD and Title V would give self-styled "environmental activists" another set of legal tools to stall construction on virtually any nonresidential building they do not want in their cities or towns.

An endangerment finding by EPA could wreak havoc on the U.S. economy even as it struggles to handle the credit crisis. It is estimated that at least 1 million midsize to large buildings already emit enough CO2 per year to become regulated stationary emissions sources and nearly 200,000 manufacturing operations would become regulated.

The compliance costs for the four CAA programs triggered by an endangerment finding would be financially and administratively unreasonable for millions of new regulated entities. Also, Congress would have to vastly increase amounts appropriated to EPA and perhaps have to appropriate greater amounts for state and local air quality grants just to administer the permit programs for CO2.

It is imperative that EPA deny the Massachusetts petition. It can make a reasonable statement as to why it cannot make a finding of endangerment because such a finding would trigger a regulatory cascade that would impose tremendous burdens on U.S. citizens; economic operations; and federal, state and local governments. The Supreme Court has given EPA this option and the agency must seize upon it because the CAA, written 30 years ago, is not the appropriate platform from which to regulate greenhouse gases.

EPA is urged to call on Congress to pass legislation preventing greenhouse gas emissions from being regulated by the CAA and address tailpipe emissions through the Energy Independence and Security Act of 2007 (passed after the Massachusetts ruling) and the Energy Policy Act of 2005. And, for its part, Congress is urged to pass market-based solutions to curb emissions, such as shortening the tax depreciation schedule for commercial roof systems from the current 39-year schedule to a more realistic 20-year schedule for new systems that meet the energy-efficiency requirements of Standard 90.1 of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE). This is a goal NRCA pursued in the 110th Congress through the Roofing Energy Efficiency Tax Act, HR 4126, and by enacting such legislation, Ducker Research finds CO2 emissions would be cut by 20 million pounds a year and 40,000 new "green" manufacturing and contracting jobs would be created.


Craig S. Brightup
NRCA Vice President of Government Relations

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