AGC-Backed Bill Encourages Transparency and Fairness

On April 18, Reps. Marc Veasey (D-Tex.) and Pete Stauber (R-Minn.) introduced an AGC-backed bill—H.R. 2344—that would require a federal construction contracting agency to pay at least 50 percent of the actual (incurred or committed) cost percent of the cost of the unilateral change order which would lessen the negative impacts from unilateral change orders directed by the government.

Pushes Congress to Address Workforce Needs

On April 22, AGC of America in partnership with AGC of Virginia and R.E. Lee & Son Inc. hosted Representative Denver Riggleman (R-VA) for a tour of a construction project in Charlottesville, VA. The tour took place at the more than 5,000 square foot addition that R.E. Lee & Son, Inc., is building for ReadyKids, a local non-profit for early childhood development. While touring the site, construction officials and Rep. Riggleman discussed the need for Congress to address the workforce shortage in the construction industry and pass a long-term infrastructure bill. They noted that a January 2019 AGC of America survey of Virginia construction contractors found that 92 percent of those contractors are having a hard time filling some or all positions. To see the full press release from the visit click here.

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.

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.

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. 

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): 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, limits on the timeline and extent of documentation for historical inquiries, 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.

Would Annually Provide $100M in Grants for Diesel Retrofits

On April 10, the Senate Committee on Environment and Public Works voted overwhelmingly to advance a bipartisan AGC-backed bill to reauthorize the Diesel Emissions Reductions Act (DERA) program. The bill would provide $100 million annually through fiscal year 2024 for grants and rebates to states and localities to upgrade or replace older diesel engines, including off-road construction equipment. AGC chapters – working with AGC of America – have won millions in federal funds to support AGC members’ voluntary retrofit projects, in addition to leveraging millions more in matching and in-kind contributions to help their members afford the high cost of reducing emissions from construction equipment.

AGC will continue to work with Congress and the administration to ensure they recognize the importance of the DERA program and they provide greater financial assistance to the many equipment owner who seek a fair and effective way to reduce emissions from existing fleets of off-road equipment.

For more information, contact Sean O’Neill at oneills@agc.org.

The AGC’s Utility Infrastructure Division (UID) unveiled its white paper addressing underground utility safety and damage prevention during AGC’s Annual Convention on April 3. The white paper lays out key elements of an effective excavation safety program that when included in an overall safety package will help keep facility damages to a minimum and maintain a record of the circumstances surrounding a damage; particularly, which party in the 811 process is liable for a damage. The program is based on Common Ground Alliance (CGA) Best Practices and AGC’s expertise and resources.

The program will also help deal with the practice of aggressive billing by facility owner/operators (O/O’s). Aggressive billing is when O/O’s and their collection agents file a claim against contractors for damaging their facilities whether the excavators is at fault or not.  These claims are often filed years after a damage has occurred and the contractor has no record of the event and/or if it happened at all.

For more information, contact Allen Gray at allen.gray@agc.org or (703) 837-5321.

On April 10, President Trump signed two executive orders supporting the development of energy infrastructure. The orders seek to address lengthy permitting delays that can impede construction. The first order removes barriers to pipeline construction, provides incentives for private investment in energy infrastructure and updates transport regulations to allow shipment of liquified natural gas by rail. The second order provides the president with sole authority to grant permits for pipelines to cross U.S. borders with Canada and Mexico, with advice from the State Department. AGC continues to support efforts to streamline federal permitting processes.

For more information, contact Allen Gray at allen.gray@agc.org or (703) 837-5321.

On April 1, the U. S. Department of Labor’s (DOL) Wage and Hour Division (WHD) unveiled a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. This proposal intends to ensure employers and joint employers clearly understand their responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek. AGC will provide input to the DOL on the impact this update might have on the construction industry and will notify members of any developments.
The Department now proposes a four-factor test - based on court-established precedent - that would consider whether the potential joint employer actually exercises the power to:

• • Hire or fire the employee;

• • Supervise and control the employee's work schedules or conditions of employment;

• • Determine the employee's rate and method of payment; and

• Maintain the employee's employment records.

The proposal also includes a set of joint employment examples for comment to further assist in clarifying joint employer status. In 2017, the DOL withdrew—in line with AGC recommendations—the previous administration’s sub-regulatory guidance regarding joint employer status.

For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382.