BY STEVEN H. MILLER
The regulatory environment is shifting considerably as the Trump administration continues to undo numerous changes that occurred during Obama’s time in office. While several recent revisions align with AGC’s positions, there’s more work to be done. The association continues to engage on a broad range of regulations, targeting regulatory and legislative issues that are of concern to its members and the industry.
To find out about the latest developments, Constructor spoke with Jimmy Christianson, AGC’s vice president of government relations, who elaborated on several of the top ongoing regulatory issues as well as recent successes.
WHAT AGC FIGHTS FOR
Christianson points out that AGC’s advocacy is not just about opposing regulation. “We look at the degree to which any proposed regulations could have an impact, whether positive or negative, and act accordingly. There’s some rulemaking that we want. We fought to keep a rule on the limitation of state departments of transportation specifying proprietary products on federal-aid transportation contracts, a rule that had been in place at the USDOT for over a hundred years.”
Waters of the United States (WOTUS) — The EPA has now officially repealed the 2015 rule expanding the definition of Waters of the United States under the Clean Water Act. According to Christianson, the expanded definition of WOTUS resulted in a much longer permitting process, with federal permits on top of existing state permitting.
A final rule repealing the 2015 rule was published in October and will take effect Dec. 23, 2019. “Through a court action,” explains Christianson, “about half of the country was under the pre-2015 rule, but the other half was under the Obama rules. Now the country will go back to the 1986 status quo rule.” AGC continues to work with the administration to get better clarity about the actual extent of federal jurisdiction. “We expect that rule to come forth early in 2020.”
While it sounds like the issue has been resolved the way AGC favored, Christianson is not closing the books yet. “We’re cautiously optimistic, but there will be litigation. The hope is that the positions that we want will remain in place while litigation is under way.”
Overtime — Another recent success is the modification of the overtime threshold. A new rule that would have doubled the threshold for overtime-exempt employees in the space of one year — from about $23,000 to over $47,000 — was halted by a court order in 2016, and then officially rescinded by the current administration. It was replaced with a more moderate increase, to $35,568. “A more gradual increase in the overtime dollar threshold was something that we were more supportive of,” reports Christianson.
Endangered Species Act (ESA) Implementation — In August, the administration rolled back several of the Obama administration policies that required threatened species under the ESA to be treated as if they were endangered under the act. “That triggers more monitoring, stop-work requirements and mitigation than threatened species under the statute,” Christianson states. “Our complaint was that if Congress intended threatened species to be treated like endangered species under the ESA, they would not have delineated a difference between them. Ultimately, that’s the position this administration took, and they finalized the rescinding of that policy in August.”
THE WORK CONTINUES
Going into 2020, AGC has over 20 initiatives on its regulatory advocacy agenda.
The OSHA Standard for Respirable Silica Exposure — AGC opposed the recently implemented standard for respirable silica and was party to a federal lawsuit, alongside other industry organizations, attempting to stop it. That lawsuit was lost in 2016, and the rules went into full effect in 2017. However, AGC is still working with the federal government to improve the way the rules are implemented.
“At a minimum,” says Christianson, “we want to make the standard more flexible and clear, so that contractors can understand it, meet it and do it in a workable manner.”
OSHA has put out a request for information to expand Table One, the list of specific construction activities that create respirable silica exposure, and the remedies that contractors can use. Table One offers a straightforward avenue for compliance that does not require air testing.
“If you’re doing something on the site that’s not an activity delineated in Table One,” Christianson points out, “you could have to do all sorts of air testing, and could have to put your people on respirators, and could have requirements for reporting as well.” AGC is seeking to expand Table One to include more specific activities and remedies so that compliance will be simpler and more predictable in cost.
Industry-Recognized Apprenticeship Programs — “One of the biggest issues we’ve been dealing with is improving the pipeline of new workers into the industry. One issue there we have weighed in on involves industry-recognized apprenticeship programs (IRAP). This initiative would establish a new system for government approval of apprenticeship programs that would operate in parallel with the existing registered apprenticeship system.”
The Department of Labor’s proposed rule did not allow the construction industry to participate initially in the newly expanding program. In August, AGC submitted comments asking the department to include thoughtful solutions for all industries, including construction. AGC believes that expanding opportunity and access to all training opportunities is an important part of a multifaceted approach to addressing the crisis. While joint labor-management apprenticeship programs are the gold standard for training workers in the industry, high-quality unilateral programs should be eligible for government approval and funding on a fair and impartial basis.
“We fight for reasonable regulatory initiatives. Sometimes that means fighting bad regulations, and sometimes that means keeping in place the ones we think are good. Anything that impacts the construction industry, we take a look at.”~ Jimmy Christianson, AGC of America’s vice president of government relations
Hours of Service for Commercial Truck Drivers — AGC is seeking a change to the short-haul exemption for the work hours of commercial truck drivers. “The construction industry uses trucks extensively to deliver and remove materials to and from the site, but,” Christianson explains, “they’re not like long-haul truckers. A lot of the time truck drivers are waiting in their vehicles for dirt to be loaded or materials to be unloaded.” AGC argued that the 100-mile exemption for short hauls is unrealistic in the larger and less populated states and sought to expand the radius to 150 miles. The Federal Motor Carriers Safety Administration has proposed 150 as AGC recommended and proposed increasing the short-haul exemption from 12 hours to 14 hours. AGC submitted comments in October and is waiting for a final rule.
Other regulatory initiatives include DOL’s proposed update to the Regular Rate of Pay regulations, pending OSHA updates to standards for Blood Lead Levels and Welding in Confined Spaces, and a pending update to Joint Employer Status under FLSA. Issues with DOT include flying drones at night and over people, processing Buy America/Buy American waivers, Indefinite Delivery and Indefinite Quantity contracts for federal-aid construction and a program for eliminating duplication of environmental reviews. Pending issues at the EPA include preventing regulation of stormwater discharge into groundwater under NPDES Stormwater Permit, redress of EPA’s 404 Permit Veto Authority, clarification of state clean water certification procedures under the Clean Water Act and review of National Ambient Air Quality Standards for Ozone and Particulate Matter.
“We fight for reasonable regulatory initiatives,” Christianson states. “Sometimes that means fighting bad regulations, and sometimes that means keeping in place the ones we think are good. Anything that impacts the construction industry, we take a look at.” A