Since President Trump assumed office earlier this year, his administration has directed federal agencies to evaluate federal regulations in an effort to reduce redundancy and promote job creation and economic growth. NSSGA has participated in this process every step of the way and will continue to advise the Environmental Protection Agency (EPA), Mine Safety and Health Administration (MSHA) and other agencies on how to address burdensome and unnecessary regulations.
NSSGA POLICY POSITIONS
Featured below is a sampling of what NSSGA has identified to key agencies seeking to review existing regulations. To find documents and letters NSSGA has shared, visit the Policy Resources page.
Action Needed: Withdraw and replace EPA’s WOTUS rule
NSSGA applauds the Trump administration’s effort to rescind and reconsider the Waters of the U.S. rule. NSSGA supports more workable and pragmatic regulations including regulating waters with relatively permanent flow.
EPA’s Waters of the U.S. Rule (80 FR 37054) is an attempt to regulate dry streambeds and isolated wetlands in what amounted to a radical expansion of federal jurisdiction over waters that have little or no connection to flowing streams and rivers. Aggregates operators would face additional, costly federal permitting, correction or mitigation, which in turn would cause increased delays and cost overruns for critical public-works projects. The rule has been under a nationwide stay from the 6th U.S. Circuit Court of Appeals since 2015, shortly after it was enacted.
Action Needed: The Mine Safety and Health Administration should withdraw the Workplace Exams rule
MSHA’s Workplace Exams rule (78 FR 5056) is set to go into effect on Oct. 2, 2017 and impede the ability of operators to effectively manage workplace safety. In addition to forcing operators to substantially alter work processes, the rule will also mandate substantial increases in paperwork. It requires workers at aggregates operations to examine an area before work begins and increase documentation of adverse conditions and abatements. Yet, the rule vaguely defines a working place and conditions that may adversely affect safety and prompt notification. The rule also requires examiners to identify themselves on the record. This will be difficult for small operators and will raise the costs of compliance. NSSGA has challenged the rule in Eleventh Circuit Court of Appeals. The rule should be withdrawn.
Action Needed: MSHA should withdraw and replace the Pattern of Violations rule
There are several substantial problems with MSHA’s Pattern of Violations rule (82 FR 7680). Most notably, it ignores the due process rights of aggregates operations by allowing MSHA to include un-adjudicated citations in its calculations for determining whether a quarry or pit deserves to be named a pattern violator of regulations. Pattern status subjects an operation to closure and massive losses. NSSGA believes that these defects in the rule are serious. NSSGA has zchallenged the rule in Federal District Court for Southern Ohio.
Action Needed: The 2016 crystalline silica rule should be withdrawn
The 2016 crystalline silica rule (81 FR 16285) should be withdrawn because the permissible exposure limit (PEL) for crystalline silica is unsupported by sound science. It should be replaced with the former general industry PEL, which effectively protects employees. In fact the previous limit has contributed to a 95 percent reduction in silicosis cases since taking effect in the early 1970s. Yet, OSHA cut that PEL in half in March 2016 despite failing to demonstrate that the former PEL was not protective. Many commercial laboratories cannot consistently measure workplace air samples with the accuracy that employers need. Inaccurate lab results may lead employers unwittingly to overlook excess exposures or to expend resources, reducing already compliant exposures. Unjustified penalties from regulators could also increase.
The rule, when it takes full effect, will cost regulated industries at least $2.45 billion annually with no offsetting benefit to employees. This cost is ultimately passed on to the taxpayers who fund infrastructure projects. If MSHA enacts a similar rule—as it intends to do—the cost to aggregates facilities would likely reach tens or hundreds of millions of dollars. NSSGA is party to a challenge of the rule in the D.C. Circuit Court of Appeals.
Action Needed: EPA’s Chemical Risk Evaluations should be based on sound, up-to-date science and exclude de minimis conditions of use.
EPA’s scoping and risk evaluation for “asbestos” (81 FR 91927 and 82 FR 6545) should precisely define asbestos and asbestos-containing material based on its chemical makeup, physical and morphological properties, appropriate methods, criteria for identification and other relevant factors.
It should also be consistent with Congress’s longstanding definitions in Title II of TSCA.
NSSGA prevailed in a lawsuit against OSHA after the agency, in 1986, erroneously altered its definition of asbestos to include common rock fragments that have not been shown to present the health hazards associated with asbestos exposure. OSHA’s incorrect definition mischaracterized many aggregates producers’ products as containing asbestos. EPA should precisely define asbestos based on its chemical makeup, physical and morphological properties, appropriate methods, criteria for identification, and other relevant factors.
EPA’s scope of risk evaluations should interpret the term “conditions of use,” or construe its obligation to review the conditions of use for selected substances, to exclude products to which asbestos is not intentionally added and that may unintentionally contain or contact trace amounts of naturally occurring asbestos.
Generally, EPA should not exclude relevant data from a risk evaluation simply because it is published after the date the risk evaluation begins. Otherwise, risk evaluations, which may take several years, will not be based on the “best available science” as TSCA requires (§ 26(h)).
Action Needed: Re-propose some of the Endangered Species Act (ESA) rules finalized by the previous administration and incorporate objective standards.
NSSGA believes that the protection of endangered species is important, and supports a scientific approach to protection that balances the need for continued economic growth. During the Obama administration, several changes were made that make an arduous process even more difficult and costly with questionable environmental benefit. The Obama administration’s change in definition of critical habitat goes well beyond the unambiguous language and intent of the ESA to include areas which may be habitat someday. This change effectively makes land off limits to development by requiring costly mitigation.
Complying with ESA rules can stop projects in their tracks and add enormous costs to permitting job-creating new operations. Mandatory consultation with the U.S. Fish and Wildlife Service is open-ended and lacks any procedures and process to define the scope, sequence and timing of agency review and action. Permits in the U.S. take far longer to obtain than other developed countries like Australia and Canada, and the ESA is major culprit. As with other regulatory burdens, these costs are passed along to the taxpayers who fund most infrastructure projects.
Action Needed: Revise rule to exempt aggregates operations
EPA’s rule for reciprocating internal combustion engines (RICE) sets strict emission limits and requires performance tests and onerous recordkeeping (40 CFR 63 Subpart ZZZZ). EPA typically focuses on regulating very large or mobile sources, as regulating very small sources is of limited value in comparison to the prohibitive cost to comply. The impacts of emissions from smaller engines are limited to the immediate vicinity of the emission source, so this rule is not needed to protect public health beyond the property lines of a facility. Regulating small engines at tens of thousands of facilities, including aggregates operations, requires costly testing and upgrades with very little positive net impact on overall air quality. While many aggregates operations have paid to upgrade their engines, the required recordkeeping and testing is an unnecessary burden.
Action Needed: Withdraw conductivity report and further evaluate need and feasibility
NSSGA finds that the Draft Field-Based Methods for Developing Aquatic Life Criteria for Specific Conductivity (81 FR 94370) is inadequate as guidance for states to develop a conductivity standard. Conductivity has always been used as rough field screening tool, and it is completely inappropriate as a legally-binding standard on its own. Compared with the development of other water quality standards, EPA has skipped or ignored a myriad of technical issues with the measurement and use of conductivity and evaluation of treatment options.
NSSGA’s view, based on available scientific data, is that a standard for conductivity is unsupportable. The agency has not performed the minimum required to provide the states with the necessary information to develop a conductivity standard. EPA and state technical documents indicate that conductivity is useful for screening, but of little value on its own. While NSSGA strongly opposes a conductivity standard for scientific and feasibility reasons, EPA – at a minimum – needs to show that there is a need for a standard, that there is a causal relationship between macroinvertebrates and conductivity, that conductivity is preferable to other, more specific analyses, and that wastewater treatment methods exist to attain a standard.
Furthermore, EPA has shirked its water quality standard development requirements under the CWA. There would be enormous consequences to states by encouraging a nebulous water quality standard which could trigger a host of other requirements, imposing an impossible burden on the regulated community. The CWA sets forth a clear procedure that has not been followed with the issuance of this draft guidance, and the EPA has not considered the effects on the aggregates industry and economy at large.
Action Needed: Reconsider allowing these exemptions from air regulations
Over the years, the federal courts have held that Startup, Shutdown and Malfunction (SSM) provisions in state implementation plans (SIPs) are necessary to ensure that emission limitations based on attainment of the National Ambient Air Quality Standards (NAAQS) are feasible. The same is true with respect to emission limits based on new source performance standards. EPA’s revisions in 2015 (80FR33840) deviated from EPA’s longstanding SSM policy by declaring that SIP provisions providing an affirmative enforcement defense in startup and shutdown situations are no longer acceptable. The stated reason is that because those are “planned” events, the source operator should be able to keep emissions within the limits. That is not the case in our industry, and the approach conflicts with court decisions; therefore, EPA re-instate this provision.
Additional controls to prevent excess emissions during SSM events for NSSGA member operations are infeasible and in most cases also unnecessary to assure attainment of the NAAQS. Beyond that, the overwhelming weight of the relevant judicial precedent is opposed to EPA’s proposed approach. This is confirmed by over 30 years of prior EPA policy recognizing the necessity of the defense. EPA should grant an exemption or affirmative defense for excess emissions from SSM situations.