Construction Legislative Week in Review
www.agc.org April 18, 2019
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On the Inside
Environment
U.S. EPA Concludes Pollution Through Groundwater Does Not Require a Federal Discharge Permit
AGC Supports Proposed WOTUS Definition
Transportation
Work Zone Awareness Week to Highlight Worker Protection
Regulations
AGC Comments on FAA Drone Rules
Events
Got Questions for a Federal Agency? Submit them for AGC’s Federal Contractors Conference
WebEd: Critical EEO-1 Survey Reporting Requirements Update
2019 Safety, Health & Environmental Conference | July 23 – 25, 2019 | Seattle, WA
Environment
U.S. EPA Concludes Pollution Through Groundwater Does Not Require a Federal Discharge Permit
 
The U.S. Environmental Protection Agency (EPA) is seeking public comment on an interpretive statement published April 15, concluding that “releases of pollutants to groundwater are categorically excluded from Clean Water Act’s permitting requirements because Congress explicitly left regulation of discharges to groundwater to the states and to EPA under other statutory authorities.” The full interpretive statement is online. EPA had requested comment on the issue previously; AGC solicited input from members and submitted comments challenging EPA’s consideration of using the CWA permit program to regulate discharges to groundwater eventually making their way to a jurisdictional surface water. AGC strongly maintains that the CWA’s point source program does not regulate releases that reach “Waters of the U.S.” via groundwater. AGC will engage with the agency and industry partners on whether additional clarity is needed. EPA has recognized that it may need to modify its statement in the future, in light of the U.S. Supreme Court’s recent decision to hear a groundwater “hydrologic connection theory” case. Click here for more information. 
 
For more information, contact Leah Pilconis at pilconisl@agc.org
 
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AGC Supports Proposed WOTUS Definition
Suggests improvements based on contractor feedback
 
On April 15, AGC formally supported and offered substantive feedback in response to a new definition of “waters of the United States” (WOTUS) proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. The current proposal provides greater clarity than the 2015 WOTUS Rule (undergoing legal challenges and repeal) as: it better identifies federal waters, respects states’ primary role in pollution prevention, and balances major case law from the last couple of decades.
 
In its comments, AGC urges the agencies to further refine newly proposed definitions or points of specific interest to the construction industry. Specifically, AGC calls on the agencies to exclude ditches that are part of a community’s public infrastructure from regulation as a federally jurisdictional water. AGC also seeks a full exclusion for stormwater control features, a standard methodology(ies) for distinguishing between ephemeral versus intermittent waters, further reducing the burden of documentation and setting a timeframe for historical reviews, more examples of how the exclusions would work in the field, as well as greater clarity on how the proposal would treat flood controls. 
 
The agencies will now take several months to review and respond to public comments on the proposal and prepare a final version of the rule. AGC expects them to release a final rule towards the end of the year,; however, the first quarter in 2020 is also a possibility. The agencies have been very deliberative during the “repeal and replace” process and the timelines often are extended as a result. In the interim, AGC will continue to be involved as the proposal moves through completion and as Congress looks to address WOTUS. AGC continues to track legal challenges to the 2015 WOTUS Rule that are moving through the courts at the district level. However, a formal repeal of the 2015 WOTUS Rule by the agencies is imminent.
 
For more information, please contact Melinda Tomaino at tomainom@agc.org
 
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Transportation
Work Zone Awareness Week to Highlight Worker Protection
Take AGC’s Work Zone Survey
 
April 8-12 was “Drive Like You Work Here” week for the 2019 National Work Zone Awareness campaign. For this campaign, on Tuesday, April 9, AGC participated in the national kick-off week with the reconstruction of Washington, D.C.’s South Capitol Street bridge as a backdrop. FHWA Deputy Administrator Brandye Hendrickson and DDOT’s Director Jeff Marootian participated in the event which included a testimonial from Lyndsay Sutton whose father, a construction worker, was struck and killed by a vehicle in 2011. AGC chapters, member firms, state DOTs, and other construction associations also participated in the annual awareness campaign by hosting a variety of events nationwide. AGC of America continuously surveys members about work zone safety issues and utilizes the results to emphasize the importance of driving safely through work zones to protect workers and motorists. Take the 2019 Highway Work Zone Safety Survey.
 
This was the 19th year of the Work Zone Awareness Week, and while there has been a steady increase in fatalities in work zones over the past four years, construction worker fatalities in work zones have steadily decreased from a high of 133 in 2012 down to 105 in 2017. Any fatality is one too many, and this improvement reflects the additional efforts contractors have taken to protect their workers. 
 
For more information, please contact Brian Deery at deeryb@agc.org.
 
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Regulations
AGC Comments on FAA Drone Rules
Asks for Construction Site Waiver
 
On April 15, AGC of America submitted comments to the Federal Aviation Administration (FAA) on two regulatory proposals dealing with the use of drones. AGC supported FAA’s proposal to lift its ban on the nighttime operation of drones and to allow flights over people with appropriately categorized drones. AGC’s comments pointed out that operators should be able to rely on the manufacturer’s certifications about the drone’s compliance with the FAA standards and not have to independently verify them. AGC also suggested that flights over construction sites that have limited access should have a special waiver because construction workers are generally informed of potential flyovers and spotters can be used to ensure that operations are carried out safely. AGC also called for a broader waiver for drone flights over vehicles which can be useful in highway construction for various inspections, including verifying traffic control devices are properly operating. FAA’s second regulatory initiative poses a series of questions asking for input on future potential regulatory initiatives. AGC’s comments addressed several issues including: establishing standoff distances near people or structures, drone speed, altitude limits, filing flight plans, and other issues. Generally, FAA has taken a flexible approach in the regulations in order to balance the need to mitigate the risk that small unmanned aircraft pose to other aircraft and to people and property on the ground without inhibiting innovation. AGC urged FAA to maintain this flexible approach.

For more information, please contact Brian Deery at deeryb@agc.org.
 
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Events
Got Questions for a Federal Agency? Submit them for AGC’s Federal Contractors Conference
AGC’s Federal Contractors Conference; June 10-12 in D.C.
 
The difference between AGC's Federal Contractors Conference (AGC’s FedCon) and other federal construction meetings is that at AGC’s FedCon construction contractor attendees drive the agenda. For this year’s conference—held June 10-12 at the Ritz-Carlton Hotel in Washington, D.C.—AGC is currently seeking your questions for consideration in meetings with headquarters leaders of the federal agencies. Click on the agency to see our draft agendas for their session and send AGC your comments.
At AGC’s FedCon, construction contractor attendees lead the meetings and develop questions for federal agencies. There are robust discussions between attendees and federal agency representatives; not death by PowerPoint presentations. 
 
In addition, learning about the latest projects and policies set to hit the street, AGC’s FedCon provides an opportunity to address problems the construction industry faces when working for USACE, including but not limited to: project delays, change orders, requests for equitable adjustments, claims, past performance evaluations and more.
 
To register for AGC’s FedCon, click here.

For more information contact Jordan Howard at Jordan.howard@agc.org
 
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WebEd: Critical EEO-1 Survey Reporting Requirements Update
May 2, 2019 - 2:00pm to 3:00pm ET
 
The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub¬contract or purchase order amounting to $50,000 or more to file the EEO-1 report. The traditional EEO-1 report (“Component 1”) requires employers to tally employment data by race/ethnicity, gender and job categories. The recently reinstated “Component 2” of the report requires employers to query their databases for W-2 pay data and FLSA hours worked information, even though individual pay data is not actually reported to the U.S. Equal Employment Opportunity Commission (EEOC). The filing of the EEO-1 report is not voluntary and is required by federal law, but we await a court order regarding the timing of any filing using Component 2 data fields.
 
The current deadline to file Component 1 is by May 31, 2019, and while clarification is expected soon on possible changes to deadlines and possible appeals regarding Component 2, employers should begin making preparations to determine how to collect, aggregate, and report on Component 2 data if, and when, ultimately required to do so. If you have never filed an EEO-1 report or have previously, but need an update and refresher, this webinar will help you understand the path that the reporting requirements have taken to get here and strategically consider the data collection requirements and the impact the collection tool will have for your organization. 
The webinar is free to AGC members. Visit the AGC WebEd page to register today.
 
For more information, contact Claiborne Guy at claiborne.guy@agc.org.
 
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2019 Safety, Health & Environmental Conference | July 23 – 25, 2019 | Seattle, WA
 
Join more than 300 construction safety, health, and environmental professionals at the AGC Safety, Health & Environmental Conference taking place July 23 – 25, 2019 in Seattle, WA. This conference is the industry’s foremost annual conference to hone in on the most critical safety, health, and environmental compliance and risk issues impacting the business of construction. Whether your goal is protecting the safety and health of the men and women working in construction or protecting the environment during the construction process – this is the conference for you. Stay current on the latest issues through a mixture of plenary and breakout sessions. Learn more about the conference today
 
For more information, contact Nazia Shah at (703) 837-5409 or nazia.shah@agc.org
 
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