Proposal to Replace 2015 WOTUS Rule Published

60-Day Comment Period Begins

On Feb. 14, the public comment period officially opened on the administration’s newly proposed replacement of the controversial 2015 Waters of the United States (WOTUS) rule. Legal challenges have placed the 2015 WOTUS rule on hold in 28 states. AGC has been advocating for a clear rule as construction projects in or near federal waters require extensive permitting that comes at a hefty price -- in addition to any state or local water permits a project will need. Over the decades, determining where federal jurisdiction lies and overly broad interpretations have added regulatory uncertainty, delay, and cost to projects.
The proposal is a step in the right direction to correct the regulatory overreach of the old rule and provide clarity to industry, while continuing to protect federal waters. It includes waters that in many cases are readily identifiable as federal waters, such as traditional navigable waters, interstate waters, tributaries and other waters with a surface connection or that regularly flow into those waters. But it excludes ephemeral features, most ditches, stormwater control features in uplands, and earthen depressions caused by construction equipment or activity in uplands that may fill with water, among other things.
Comments on the proposal are due April 15, 2019.

For more information, see AGC's WOTUS one-pager and an overview of the proposed replacement rule.  Or contact Melinda Tomaino at

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OSHA Issues Temporary Enforcement Guidance for Crane Operator Evaluation Requirements

On Feb. 7, the U.S. Occupational Safety and Health Administration (OSHA) issued a temporary enforcement policy for the crane operator evaluation requirements in the cranes and derricks in construction standard.  The effective date for the standard’s evaluation and documentation requirements was Feb. 7, 2019.  OSHA intends to offer compliance assistance, in lieu of enforcement, during the first 60 days of enforcement for employers who have evaluated operators in accordance with the final rule and are making good faith efforts to comply with the documentation requirement. Beginning April 15, 2019, OSHA will fully enforce all applicable requirements of the final rule. To help AGC members understand and comply with these new requirements, please click here for educational resources.

For more information, please contact Kevin Cannon at (703)837-5410 or  

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How to Train Construction Supervisors

In this episode of AGC's ConstructorCast, learn tips every supervisor needs to be an efficient manager of people, time, equipment and materials. Also, get a sneak peek of AGC’s new Construction Supervision Fundamentals training course, designed for the onboarding of new supervisors using highly interactive classroom sessions created by general contractors and often taught by general contractors. Learn how and why this program was created and how it fits together to set individuals up for a successful career in construction. Click here to listen.

For more information contact Amy Hager at or (703) 837-5376.

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Confusion Over Law Expanding Definition of Small Business

SBA Says Rule Not Immediately Effective

On Dec. 17, 2018, the Small Business Runway Extension Act (H.R. 6330), which modifies the method for assigning size standards for small businesses, was signed into law. The law modifies Small Business Administration (SBA) reporting requirements to allow businesses to report average earnings over the last five years, rather than three. As AGC has previously reported, the law will need to go through the usual public notice and comment process before small businesses will receive the full benefits of the expanded lookback period. The SBA has acknowledged that there has been some confusion as to whether the five year look back period is effective immediately. SBA recently issued an Information Notice to all of the agency’s Government Contracting and Business Development employees stating: “The change made by the Runway Extension Act is not presently effective and is therefore not applicable to present contracts, offers, or bids until implemented through the standard rulemaking process”… “Until SBA changes its regulations, businesses still must report their receipts based on a three-year average.”

SBA requires that businesses report their average gross receipts over the previous three years in order to be categorized as a "small" business, including for federal contractors.  According to the congressional report, the “modification of SBA’s size formula is designed to reduce the impact of rapid-growth years which result in spikes in revenue that may prematurely eject a small business out of their small size standard.”

To view the text of the bill, click here.

To view the congressional report, click here.

For more information, contact Jordan Howard at or (703) 837-5368.

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New EPA Civil Penalty Amounts Take Effect for 2019

On Feb. 6, the U.S. Environmental Protection Agency (EPA) finalized its 2019 penalty rule that increased the maximum civil penalties per violation of an environmental statute or agency regulation. These annual adjustments are required by the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015.  Below are the new 2019 penalty maximum levels to account for inflations. In practice, fines tend to track the perceived or actual economic benefit derived from the violation(s) – consistent with applicable EPA penalty policies.

  • Clean Water Act (permits effluent limits): Violations up to $54,833 per day, per violation (up from $53,484); for purposes of Section 404, a day of violation may be a day that actual discharge of dredged or fill material takes place or may also include any day that such dredged or fill material remains in the waters or wetlands.

  • Clean Water Act (oil and hazardous substance discharges): Violations up to $47,357 per day, per violation (up from $46,192).

  • Resource Conservation and Recovery Act (hazardous waste storage, management, and disposal requirements): Violations up to $74,552 per day, per violation (up from $72,718).

  • Toxic Substances Control Act (chemical management, reporting, and recordkeeping): Violations up to $39,873 per day, per violation (up from $38,892).

  • Emergency Planning and Community Right-to-Know Act: Violations up to $57,317 per day, per violation (up from $55,907).

These amounts apply to statutory civil penalties for violations that occurred after November 2, 2015, where penalties are assessed on or after January 15, 2019.
For more information, contact Melinda Tomaino at or Leah Pilconis

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House Hearing on Improving Retirement Security

Includes Multiemployer Pension Plans
On Feb. 6, the House Ways and Means Committee held a hearing focused on improving retirement security for American workers, which identified challenges including the funding of multiemployer pension plans. The hearing comes on the heels of legislation introduced at the beginning of January, the Butch Lewis Act. The bill, first introduced in 2017, would offer loans to troubled plans through a new agency at Treasury, the Pension Rehabilitation Authority. While the proposal was well vetted during the previous Congress and during the Joint Select committee on Solvency of Multiemployer Pension Plans, it appears as though congressional leaders are shifting their interest from a loan proposal to one that provides assistance to troubled plans by giving the Pension Benefit Guaranty Corporation (PBGC) greater partitioning authority.

Ahead of the hearing, AGC joined with other industry stakeholders provided a letter to the committee outlining our recommendations and priorities for multiemployer pension reform. AGC reiterates our commitment to the authorization of composite plans in any multiemployer pension reform efforts and will advocate against any changes that destabilize plans or make providing retirements benefits to workers more expensive.

For more information, contact Jim Young at

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Senate Committee Approves FHWA Administrator Nominee

Nicole Nason, President Trump's nominee to serve as the next Federal Highway Administrator, was approved this week by the Senate Environment and Public Works Committee. The nomination now moves to the full Senate for consideration. While Nason's nomination was enthusiastically supported in the committee and is not expected to attract opposition on the Senate floor, a backlog of nominations is pending Senate approval and it could be some time before Nason is approved. AGC has strongly endorsed Nason and called on the Senate to act quickly. Nason has a strong transportation background having served as the Administrator of the National Highway Safety Administration (NHTSA) and as the Assistant Transportation Secretary for Government Affairs in the George W. Bush Administration.  AGC has also worked with her in her current position at the State Department on embassy construction issues.

For more information contact Brian Deery at or (703) 837-5319.

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Buy-American Executive Order for Infrastructure Projects

Federal Agencies to Make Program-by-Program Implementation Determinations

On Jan. 31., President Trump issued the “Strengthening Buy American Preferences for Infrastructure Projects” Executive Order (EO). The Order calls on federal agencies to encourage—not mandate—recipients of new federal financial assistance awards to use—to the greatest extent practicable—iron and aluminum as well as steel, cement, and other manufactured products produced in the U.S. in every contract, subcontract, purchase order, or sub-award. According to sources at a wide array of federal agencies, it remains unclear how—or if—this EO will impact various federal-aid construction programs, including but not limited to the Federal-Aid Highway and Transit, U.S. Army Corps of Engineers Civil Works, and Drinking Water and Wastewater State Revolving Fund Programs. Ultimately, agency lawyers will make the determination on a program-by-program basis and—under the EO—must provide guidance by on or about May 1, 2019.

Markedly, the EO covers a broad range of products aside from just steel and iron. It also covers “manufactured products” – e.g., “materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.” The EO also broadly defines an “infrastructure project” and specifically notes those included are (1) roadways, bridges, railroads, and transit; (2) fossil-fuel, renewable, nuclear, and hydroelectric energy production, generation, and storage gas; oil, natural gas, and propane distribution systems; (3) drinking water, stormwater, and sewer infrastructure; and (4) cybersecurity and broadband internet.

AGC remains committed to ensuring that domestic preference programs are executed in a manner that does not increase project costs and delays and reasonably implements compliance requirements. AGC will continue contact with federal agencies and will seek feedback from AGC members on how this EO could impact construction projects.

For more information contact Jimmy Christianson at or (703) 837-5325.

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House Committee Kicks Off Infrastructure Talks

AGC-Led Coalition Letter Introduced at Hearing

On Feb. 7, the House Transportation & Infrastructure Committee held its first hearing of the new Congress entitled, “The Cost of Doing Nothing: Why Investing in Our Nation's Infrastructure Cannot Wait.”  Witnesses included: Los Angeles Mayor Eric Garcetti; former Secretary of Transportation Ray LaHood; and Minnesota Governor Tim Walz.  The hearing focused on drawing attention to the needs of our nation’s infrastructure and solutions on how to address those needs – including fixing the Highway Trust Fund, increasing the Passenger Facility Charge, and providing more resources for clean and drinking water.  At the beginning of the hearing, new committee Chairman Peter DeFazio (D-Ore.) submitted for the record an AGC and National Association Manufacturers-led letter to congressional leaders asking them to act on a bipartisan infrastructure bill. Chairman Defazio highlighted the fact that the letter was signed by 150 groups including traditional and non-traditional infrastructure stakeholders. AGC will continue to work with Congress in moving a robust and broad infrastructure package.

For more information, contact Sean O’Neill at or (202) 547-8892.

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OSHA Crane Operator Evaluation Requirement Take Effect

AGC Provides Educational Resources to Help Members Comply

As of Feb. 7, the U.S. Occupational Safety and Health Administration (OSHA) requires all contractors to evaluate crane operators under the new final rule regulating crane operator qualification and evaluation. AGC of America has spent nearly 16 years working with OSHA under three different presidential administrations to make this rule less burdensome and provide the greatest positive safety impact possible. Our mission to help AGC members does not stop when the ink dries on regulations impacting your construction company. We also want to help ensure you have the information necessary to comply. That is why we created valuable AGC educational resources.

Specifically, AGC created a summary of crane operator and evaluation rule and a sample form for crane operator evaluation. These materials represent the hard work of many AGC member safety professionals and AGC staff who want to ensure that this industry is not only safer, but also in compliance with the law.  And, more resources will be coming soon.

For more information, contact Kevin Cannon at

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