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The U.S. Environmental Protection Agency (EPA) is working to meet Clean Air Act deadlines to review, revise and implement national ambient air quality standards (NAAQS) – with nitrogen oxides and ozone at the forefront of recent actions. President Trump recently issued a memo that directs the Agency and EPA Administrator Scott Pruitt to take a series of “actions” to facilitate state and industry compliance with NAAQS and reduce barriers to economic growth.  This includes decisions for the air permits needed to construct new facilities or to expand or modernize existing facilities.  The memo notes that these air construction permits have become increasingly difficult to obtain as NAAQS have become more stringent. The White House said in a press release that the “Administration will reform NAAQS implementation to provide States with a more efficient process and to promote economic growth."

The U.S. Environmental Protection Agency (EPA) recently proposed a rule that would streamline the regulation of hazardous waste aerosol cans (currently managed under the Resource Conservation and Recovery Act (RCRA) Subtitle C, generally because of their ignitability, and subject to stringent rules on handling transport and disposal) by adding them to the existing federal list of materials that can be managed under the universal waste management system. EPA’s universal waste rules provide a streamlined hazardous waste management system for common industrial wastes like batteries, pesticides, mercury-containing equipment, and lamps.  (“Authorized” states would choose whether or not to adopt the new universal waste rules into their state programs.  Some states have already added them to their universal waste lists.)  This would likely simplify handling and disposal for contractors and save firms money (e.g., no manifest required for transport). Notably, because aerosol cans are often the only hazardous waste stream produced on a construction site, classifying them as universal waste could change a company’s “generator status” and exempt it from RCRA Subtitle C hazardous waste requirements. Universal wastes do not need to be counted toward a hazardous waste generator’s inventory for determining whether the generator is classified as a Very Small Quantity Generator, Small Quantity Generator, or Large Quantity Generator.

The construction industry can benefit from the federal funding for clean diesel activities available now.  Non-profit organizations, like AGC Chapters, are eligible to apply for funding. Construction companies may find themselves well positioned to partner with their local chapters or with other eligible agencies or organizations to create and implement clean diesel programs funded through the U.S. Environmental Protection Agency’s (EPA) national clean diesel grant program.

On April 12, the U.S. Senate confirmed attorney Andrew Wheeler, former lobbyist and congressional aide, to serve as the U.S. Environmental Protection Agency’s deputy administrator.  AGC had urged the Senate to confirm Mr. Wheeler’s nomination. If EPA Administrator Scott Pruitt were to leave the agency, Wheeler would be next in line to become acting administrator.

AGC Urges Congress to Fund Program

On April 18, AGC submitted a response to the National Labor Relations Board’s Request for Information regarding representation-case procedures.  AGC also signed onto a response submitted by the Coalition for a Democratic Workplace (CDW).  Both responses call on the Board to rescind or modify its 2014 rule that changed the procedures for union representation elections.  The rule is often called the “quickie” or “ambush” election rule because it expedites the procedures in a way that can disadvantage employers that oppose a union organizing campaign.

Recent meetings and calls for action at the federal level indicate that the Trump Administration is mounting a coordinated and collaborative approach to target all sources of lead exposure.  There are a slew of regulatory developments focused primarily on re-evaluating, clarifying, and potentially expanding the U.S. Environmental Protection Agency’s (EPA) current program that addresses lead paint hazards – the Lead Renovation, Repair and Painting (RRP) program.  In addition, federal agencies are considering other sources of lead exposure, including drinking water and soil.  Following is an update on federal activities related to lead pipes, paint, and dust.

A draft U.S. Army Corps of Engineers (USACE) directive would encourage the agency to concurrently process two related permitting reviews when a project needs them—Section 408 permissions under the Rivers and Harbors Act (RHA) and Clean Water Act (CWA) Section 404 dredge and fill permits—a priority among a number of AGC’s environmental review and permitting reform recommendations. RHA Section 408 requires USACE to evaluate and grant permission for any construction projects that alter existing USACE infrastructure—e.g., bridge/road construction project over, or by, a USACE-built levee, port construction on, or in, a USACE-dredged harbor. Where a construction project needs both a Section 408 permission and Section 404 permit, USACE does not currently begin the Section 404 permitting review process until it completes the Section 408 permission process, which further delays construction projects.

In Line with AGC Environmental Review Streamlining Recommendations

On April 12, 2018, the U.S. Department of Labor (DOL) issued 3 new opinion letters addressing compliance under the Fair Labor Standards Act (FLSA) and other laws.  The DOL issued the letters as part of its commitment to protect employees, enforce the law, and ensure employers have the tools for compliance.

On April 11, the Senate confirmed John F. Ring’s appointment to the National Labor Relations Board for a term expiring on December 16, 2022.  Once Ring is sworn in, the Board will return to a full complement of five members, with a three-to-two Republican majority.  Ring is currently a partner at the law firm of Morgan Lewis & Bockius in Washington, DC, where he co-leads the firm’s Labor-Management Relations Practice representing employers in a variety of labor and employment matters.  He has been with the firm his entire legal career, starting in 1988.