Construction Legislative Week in Review
www.agc.org May 5, 2011
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On the Inside
TAX
240 Days Until 3 Percent Withholding Begins Action Needed
ENVIRONMENT
Proposed New Construction General Permit Guaranteed to Change the Way Contractors Manage Stormwater Runoff
House Considering Bills to Increase Domestic Energy Production
AGC Testimony to Address Clean Diesel Legislation
TRANSPORTATION
Draft Surface Transportation Bill Makes Rounds
SAFETY
U.S. Labor Department Aims to Protect Workers from Heat-related Illnesses
EVENTS
AGC Meeting Brings Contractors, Agencies Together
TAX
240 Days Until 3 Percent Withholding Begins Action Needed
 

AGC continues to urge Congress to repeal the 3 percent withholding mandate on federal, state, and local government contracts. Starting January 1, 2012, public owners will begin withholding 3 percent of every payment to contractors for goods and services, including construction.

Stand-alone legislation has been introduced in the House and Senate to repeal this mandate. Grassroots contact from AGC members is very important. To write your legislators and urge them to cosponsor the legislation, click here.

The House bill, H.R. 674, currently has 86 cosponsors and two Senate bills, S. 89 and S.164, have 14 cosponsors. The number of House cosponsors has more than doubled since AGC’s convention. To see if your Senators and Representative are or have been a cosponsor of legislation to repeal the 3 percent withholding mandate, click here.

For more information, contact Jeff Shoaf at shoafj@agc.org. Return to Top

ENVIRONMENT
Proposed New Construction General Permit Guaranteed to Change the Way Contractors Manage Stormwater Runoff
Comments Deadline June 24
 

The U.S. Environmental Protection Agency (EPA) proposed a draft revised construction general permit (CGP) for public comment to regulate stormwater discharges from active sites where EPA is the permitting authority. The revised CGP will replace the current 2008 CGP, which is set to expire on June 30. 

EPA concurrently proposed to extend the current CGP through January 31, 2012, in order to give the Agency time to promulgate the new CGP in final form.  The proposed new CGP includes significant modifications that would increase the costs, labor, and paperwork burdens and liability for construction site operators tasked with stormwater compliance. States authorized to run their own stormwater permit programs are expected to follow EPA’s lead in adopting enhanced protections. EPA will accept comment on the proposed new CGP through June 24.

Major proposed changes to the current CGP aim to implement the new “Effluent Limitations Guidelines” for the “Construction and Development Industry” (C&D ELG rule), which took effect on February 1, 2010.  See 74 Fed. Reg. 62996, Dec. 1, 2009 and 40 CFR 450.21.  All permitting authorities (EPA as well as the states) are required to incorporate the new C&D ELG requirements into their construction stormwater permits upon next reissuance.  Those requirements include a suite of mandatory erosion and sediment controls, soil stabilization practices, pollution prevention measures, surface outlet protections, and dewatering practices that apply to all permitted construction sites.  The C&D ELG rule also for the first time imposes an enforceable numeric turbidity limit on stormwater discharges from sites disturbing 10 acres or more at one time and requires monitoring and reporting to ensure compliance with the numeric limit. [NOTE: As previously reported by AGC, EPA has stayed the numeric limitation of 280 NTU (nephelometric turbidity units) that was published final C&D ELG rule. EPA will propose a revised NTU limit in a future rulemaking. The revised CGP includes a placeholder for the recalculated numeric turbidity limit (as well as corresponding permit requirements for monitoring, reporting, and the acreage threshold) because EPA plans to incorporate the recalculated numeric limit into the final permit.].

In November 2009, The Wall Street Journal reported that the effluent limitation rules could add nearly $1 billion in annual costs to construction projects.

Construction sites disturbing one or more acres of land or smaller sites that are part of a common plan of development or sale are required to obtain permit coverage for their stormwater discharges.  EPA’s CGP applies in areas where the EPA is the permitting authority. These areas presently include four states (i.e., Idaho, Massachusetts, New Hampshire, and New Mexico); the District of Columbia; Puerto Rico; all other U.S. territories, with the exception of the U.S. Virgin Islands; federal facilities in four states (i.e., Colorado, Delaware, Vermont, and Washington); and most Indian lands and for a few other specifically designated activities in specific states.

Other significant proposed permit modifications include:

  • Eligibility for emergency-related construction
  • Changes to the permit authorization process
       -Required use of the electronic notice of intent process
       -New “secondary operator” category
       -Waiting period to increase from 7 to 30 days for new sources
  • New requirements for discharges to impaired waters
       -Benchmark monitoring of discharges if disturbing 10+ acres at one time and reporting
       -Tighter stabilization requirements and more frequent inspections
  • Corrective action requirements
  • More specific provisions on
       -Employee training and documentation
       -Inspection protocols and procedures
       -Final stabilization

More information on the proposed CGP is available here.  AGC will provide further details on the significant proposed permit modifications in AGC’s Environmental Observer and conduct extensive member outreach as it works to prepare comments and recommendations for EPA. 

Free EPA Webcast

EPA will host a webcast presentation on Tuesday, May 24 from 1:00 to 3:00 pm ET to discuss the proposed new CGP.  The webcast will cover the new requirements of the proposed CGP and provide participants an opportunity to ask questions of EPA staff.  Online registration for this will be open soon on EPA’s website.

For more information, contact Leah Pilconis at (703) 837-5332 or pilconisl@agc.org. Return to Top

House Considering Bills to Increase Domestic Energy Production
 

AGC wrote to the House of Representative this week to urge support for several House bills that will allow increased energy production and lead to a more stable energy market for major consumers of energy, including the construction industry.

The first bill authored by House Natural Resources Committee Chairman Doc Hastings (R-Wash.), passed today in a 266-149 vote.

AGC noted that there is no immediate fix for meeting the nation’s energy needs, but urged consideration of all energy options to ensure the construction industry has consistent access. A growing and vibrant industry relies heavily on reliable long-term source of energy, and is extremely susceptible to price spikes and product scarcity.

View the letter here.

For more information, contact Jeff Shoaf at shoafj@agc.org. Return to Top

AGC Testimony to Address Clean Diesel Legislation
 

AGC will present testimony at a hearing next week before a Senate Environment and Public Works Subcommittee, which is looking into initiatives to reduce diesel emissions in clean air non-attainment areas.

Bob Lanham, Williams Brothers Construction Company, will address various incentives that can be used to speed up the development of technologies to help reduce various emissions from diesel powered construction equipment. AGC’s testimony will point out that initiatives aimed at diesel retrofit and repowering of existing equipment must be proven to be effective and not adversely impact the operation of the equipment or the safety of the workers.

Senator Tom Carper (D-Del.), Chairman of the Clean Air and Nuclear Subcommittee, intends to include language in the transportation reauthorization legislation to use a portion of federal highway funds intended to be used for clean air initiatives to provide incentives to contractors to upgrade their equipment. AGC is working with Carper’s staff to ensure the provision does not have a negative impact on the construction industry.

For more information, contact Brian Deery at (703) 837-5319 or deeryb@agc.org. Return to Top

TRANSPORTATION
Draft Surface Transportation Bill Makes Rounds
 

Last week, a draft surface transportation reauthorization bill started making the rounds on Capitol Hill.  The draft, which was not very informative, was then followed by a more complete (yet undated) 500-page draft called the Transportation Opportunities Act.  

The Transportation Opportunities Act and a Department of Transportation section-by-section analysis of the bill provide clear indications on the administration’s priorities heading into the surface transportation reauthorization debate.  Even though high speed rail funding was slashed in the final fiscal year 2011 continuing resolution, the president keeps it as a top priority by providing $53 billion over six years for a high speed rail program.  The administration also remains committed to its livability agenda through the creation of a formula-based Livable Communities Program, which would be funded at $23 billion over six years.  In addition, they propose two discretionary grant programs: the Livable Communities Demonstration Grant Program ($3 billion over six years) and the Livable Capacity Grant Program ($2 billion over six years).  These two programs lack detail but DOT’s intention is to increase funding for sidewalks and bike paths and further develop the HUD-EPA-DOT interagency Partnership for Sustainable Communities.

The draft bill does call for significant increase in funding for both highways and transit but does not identify any new revenue sources to pay for such increases.  Considering President Obama has said he will not increase the gas tax to fund any surface transportation bill, it is unlikely a bill will include the increases suggested in the Administration’s draft.

The administration’s proposal does provide for increased tolling as a way to increase revenue.  They would allow great flexibility for state and local governments to impose tolls on highways, bridges and tunnels.  The first tolling option focuses on Metropolitan Congestion Reduction and permits state and local governments to toll existing highways, bridges, and tunnels (including Interstate) for the purpose of improving congestion in metropolitan areas over one million people.  The second option focuses on Interstate System Improvements and allows for the collection of tolls on Interstate highways, bridges, and tunnels for the purpose to initially construct new Interstate facilities and/or adding one or more lanes to existing Interstate.    They also call for the creation of National Infrastructure Innovation and Finance Fund to help finance major transportation construction projects.

The proposal also aims to improve project delivery through the creation of a Project Delivery Acceleration Initiative.  The goal of this initiative according the draft is to “identify and promote the deployment of innovation aimed at reducing the time and money it takes to deliver transportation projects while enhancing safety and protecting the environment.”  As spelled out in the proposal, DOT will be engaging with stakeholders about how best to improve project delivery and reduce costs.  AGC looks forward to sharing our ideas with DOT on how best to achieve this goal.

Although this document is a positive step in getting the conversation moving on reauthorization, it must be taken with a grain of salt. DOT has not confirmed whether it is the proposal that they plan on sending to the Hill, but it does provide a roadmap to the Administration’s priorities.

For more information, contact Sean O’Neill at (202) 547-8892 or oneills@agc.org. Return to Top

SAFETY
U.S. Labor Department Aims to Protect Workers from Heat-related Illnesses
Occupational Safety and Health Administration launches national outreach campaign
 

On April, 26, Secretary of Labor Hilda L. Solis announced a national outreach initiative by the U.S. Department of Labor's Occupational Safety and Health Administration to educate workers and their employers about the hazards of working outdoors in the heat and steps to prevent heat-related illnesses.

Heat can be a real danger for workers in jobs ranging from agriculture and landscaping to construction, road repair, airport baggage handling and even car sales. 

According to the Bureau of Labor Statistics (BLS) Census of Fatal Occupational Injuries (CFOI) data, 230 heat-related deaths have occurred from 2003 – 2009 with 81 (40%) of these fatalities in the construction industry.  Over that same time period, 15,370 heat-related injuries/illnesses requiring days away from work have occurred with 4,110 (27%) of these injuries/illnesses in the construction industry. 

OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. Additionally, a new Web page provides information and resources on heat illness – including how to prevent it and what to do in case of an emergency – for workers and employers.

Federal OSHA has worked closely with the California Occupational Safety and Health Administration to adapt materials from that state's successful outreach campaign on heat illness for use in this national effort. In addition, OSHA is now partnering with the National Oceanic and Atmospheric Administration on weather service alerts that will incorporate worker safety precautions when heat alerts are issued across the U.S. NOAA also will include pertinent worker safety information on its Heat Watch Web page at http://www.noaawatch.gov/themes/heat.php.

For more information, contact Kevin Cannon at cannonk@agc.org. Return to Top

EVENTS
AGC Meeting Brings Contractors, Agencies Together
 

AGC’s Federal Contractors Conference attracted nearly 400 people to Washington, D.C., this week to meet with 20 federal agencies and review procurement and contracting issues.

While the meeting continued on Thursday with participation from the U.S. Army Corps of Engineers, the week was packed with productive face-to-face exchanges.

  • AGC signed a renewed partnering agreement with Naval Facilities Engineering Command (NAVFAC).

  • The Federal Owners Advisory Council discussed the impact of 3% withholding on their contracting offices and how implementation would affect their programs. They also discussed the various approaches they were taking to President Obama’s Executive Order encouraging the consideration of PLAs on federal government contracts.

  • AGC and the Army Corps of Engineers, NAVFAC and the Air Force met throughout the week to discuss safety, best value contracting, sustainability, PLAs, Building Information Modeling, and past performance evaluations.

  • AGC and GSA focused on budgetary challenges, CM At-Risk contracting, and PLA implementation as the agency most aggressively utilized PLAs on seven of 10 Recovery Act projects.

  • The Department of Veterans Affairs session was new to the conference this year, and the meeting focused on the ways in which AGC and the Department could partner to help improve its contracting mission.

  • AGC's Small Business Forum convened with representatives from the Small Business Administration and small business representatives from the major federal construction agencies to discuss the new changes to the 8(a) program; how to pursue teaming arrangements and joint ventures; and details on lower tier subcontracting.

  • EPA's Office of Water was very pleased with contractors in general and AGC in particular for the superb execution of contracts associated with the American Recovery and Reinvestment Act. They were also very thankful for AGC's support and guidance in implementing the Recovery Act's Buy American provisions for their programs.

  • The AGC International Construction Forum tripled its best attendance record and included discussion on the Bureau of Overseas Buildings Operations’ new initiative for Design Excellence in Embassy Construction and the steps they are taking to increase the use of best-value and early contractor involvement project delivery vehicles.

  • Senior Department of Transportation representatives from the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), Federal Aviation Administration (FAA) and Federal Railroad Administration (FRA) briefed participants on their construction budgets for the coming fiscal year and program highlights. Participants also discussed transportation reauthorization legislation, procurement issues - in particular the Construction Management/General Contractor (CMGC) project delivery method.

  • Representative Darrell Issa (R-Calif.), Chairman of the House Committee on Oversight and Government Reform, addressed conference attendees and talked about his plans to review a wide variety of regulatory policies that are negatively affecting job creation and examining how the Obama Administration is using the regulatory process to implement policies and may stifle economic recovery.

During the conference, AGC members launched an all out offensive on the legislative front with a series of organized Capitol Hill visits to provide information on repeal of three percent withholding tax, federal regulations that impact the industry, and the need for multiyear infrastructure investment authorizations of transportation, federal facilities and water programs.

For more information, contact Marco Giamberardino at (703) 837-5325 or giamberm@agc.org. Return to Top

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