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January 7, 2011

The Honorable Darryl Issa


Committee on Oversight and Government Reform
2157 Rayburn House Office Building
Washington, DC 20515-6143

Dear Chairman Issa,

The National Concrete Masonry Association is pleased that your committee is examining existing
and proposed regulations that negatively impact the economy and jobs and that you have asked
for our assistance in identifying examples and explaining their effect. NCMA, established in 1918,
is the national trade association representing the concrete masonry industry. Collectively, the
masonry industry represents $23 billion in construction annually and employs 550,000 people in
all 50 states.

Presently, two regulations are in the rulemaking process at EPA and OSHA and another being
“reinterpreted” at EPA and OAHA that, if they turn out as intended by those agencies, will have
significantly negative effect upon job growth in the concrete masonry manufacturing industry:

Coal Combustion Residuals (CCRs), Disposal of – EPA Rulemaking.

Issue. The EPA, with heavy encouragement from forces determined to destroy
America’s coal industry by political and regulatory means, has zeroed in on the electric
power generation industry, which uses an immense amount of coal to produce electricity,
seeking to regulate disposal of coal combustion residues (CCRs) under RCRA as a
hazardous waste. Associated high handling and disposal costs from such a rule would
increase the cost of electric power production as electricity producers convert existing
facilities to comply with hazardous waste regulations or convert from coal to other fuels.
These costs would be passed on to all consumers, including producers of concrete
masonry. In addition to paying more for electricity, concrete masonry producers that
consume a considerable amount of recycled fly ash would face the even greater burden
of retrofitting plants and equipping workers to handle a “hazardous” waste. EPA appears
to favor hazardous waste regulation of CCRs, in spite of intense opposition from industry,
consumers, and virtually all the States and other federal agencies (e.g., DOE, DOI,
Department of Agriculture), and, if that were not enough, two of its own previous
regulatory determinations that fly ash does not warrant regulation as a hazardous waste.

Background. CCR (fly ash) is used in considerable quantity in the manufacture and
placement of concrete masonry in the construction industry. Substitute materials are
more expensive and less effective than fly ash, putting our industry at a competitive and
possibly fatal disadvantage. Despite significant opposition, EPA has continued
undeterred for several years and rulemaking is expected to culminate with promulgation
of a final rule later this year.

Position. NCMA strongly opposes regulation of fly ash as a hazardous waste, with or
without special use exemption.

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Impact of Job Growth if Adopted. It is conceivable that a sizeable portion of the concrete
masonry industry would be significantly impacted by this rule because the expense of
handling fly ash as a hazardous waste. Resulting increased costs could drive concrete
users to alternate construction means like building with wood and steel, which could be
inferior to concrete products for their applications, more expensive, or both. Job loss
could be overwhelming and occur in every state, dramatically affecting an industry
already crippled by the lingering effects of the recession.

Occupational Exposure to Crystalline Silica – OSHA Rulemaking

Issue. OSHA is scheduled to publish a proposed standard for occupational exposure to


crystalline silica in April. We expect that it will cut in half the existing permissible
exposure limit (PEL) for crystalline silica. Workers exposed to excessive levels of
respirable crystalline silica for long periods of time can develop silicosis and, according to
OSHA, may face an increased risk of lung cancer as well. But the evidence does not
establish that these increased risks will be found in workers whose exposures are
maintained at or below the current PEL.

Background. Though OSHA has been working on a crystalline silica standard for many
years, it has not sponsored a study to determine whether American workers today are at
increased risk of developing silicosis (or possibly lung cancer) if their exposures do not
exceed the current PEL. Indeed, there is good reason to believe that complying with the
current PEL is sufficient to prevent cases of silicosis. And even if crystalline silica
exposures can cause lung cancer, a position that remains controversial, exposures that
are not high enough to cause silicosis will not increase the risk of lung cancer either.

Position. Health and welfare of workers in our industry is of utmost importance. If


scientific studies showed that reducing the PEL is necessary to reduce cases of silicosis
and risks of lung cancer, NCMA would be more receptive to OSHA’s expected proposal.
However, we do not believe the body of science shows that to be the case. The public
would be better served, in our opinion, if OSHA focused its resources upon ensuring that
all employers are complying with the current PEL. This, we believe, will adequately
address any health risks associated with exposure to crystalline silica. Though
supplementing the current standard with certain ancillary requirements, e.g., exposure
monitoring and medical surveillance, is a separate question, but cutting the current PEL
in half is not justified by supporting evidence at this time.

Impact on Job Growth if Adopted. Any further lowering of the PEL will only lead to
increased costs for employers, passed-on costs to consumers, lost jobs for workers, and
more community hardship – all without doing a thing to provide more protection to
workers.

Workplace Noise Control Rule, Reinterpretation -- OSHA

Issue. OSHA has announced its intent to change its official interpretation of existing
federal noise exposure standards in a way that would, among other things, fundamentally
change the hierarchy of controls to now require “engineering and administrative controls”
to maintain noise levels below a minimum daily dose. These controls mean noise
cancellation technologies for the individual worker and broad noise reduction for the
entire worksite or plant setting. Assuming that meeting these requirements is
technologically possible at all, the costs to employers in our industry would be
astronomical.

Background. Construction and manufacturing work sites are inherently noisy. Employers
have long recognized, if for none other than a productivity standpoint, the importance of

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shielding workers from noise as much as possible. Existing noise regulations have
worked well. For nearly three decades OSHA has allowed employers to develop hearing
conservation programs that rely on “personal protective equipment” if they are more cost-
efficient than other engineered and administrative controls but as effective. Our industry
is not sure why OSHA has chosen to ratchet up the noise protection regulations at time
when hearing loss injuries are low and steadily improving. We do know that the
movement has priority at OSHA and suspect, as indicated by the fact that OSHA is
attempting to “reinterpret” an existing rule rather than engage appropriately in rulemaking
for a new one, that OSHA wants to railroad this through a path of least resistance,
namely by reinterpreting an existing rule rather than subjecting a proposed new one to
the scrutiny of rulemaking that would require the agency to take stakeholder input into
consideration.

Position. Existing hearing protection programs and procedures are effective in protecting
workers’ hearing. OSHA would not have adopted the existing rules if it thought
otherwise. The agency has failed to produce any evidence to justify the proposed
reinterpretation. The magnitude of noise mitigation intended by this reinterpretation will
significantly increase manufacturing costs for masonry producers and construction costs
for contractors building with concrete.

Impact on Job Growth if Adopted. Manufacturing and construction process flexibility


would be limited to the point of non-competitiveness for employers, resulting in massive
layoffs in our industry.

If you or your staff would like additional assistance in engaging these issues, please contact me
or Bill Plenge, Director of Government Relations, at rthomas@ncma.org or bplenge@ncma.org,
respectively.

Sincerely,

Robert D. Thomas
President

cc: William H Plenge

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