ARTBA Delivers Key 2014 Regulatory Achievements

by Nick Goldstein

With 35 filings to federal agencies on proposed regulations, helping shape the outcome of a new Disadvantaged Business Enterprise (DBE) rule, filing a legal brief in an Illinois DBE case, and achieving long-time industry objectives on stormwater runoff and coal ash, ARTBA’s legal and regulatory advocacy program was busy on many fronts during 2014.

In response to an onslaught of regulatory proposals, ARTBA prepared and submitted comments to the U.S. Department of Transportation (DOT), Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) on issues such as silica, workplace injury and illness reporting, “Waters of the U.S.,” P3s, and fuel economy standards.

The association also focused on helping ensure that implementation of the 2012 “Moving Ahead for Progress in the 21st Century” (MAP-21) law continued in the manner consistent with the bipartisan desire in Congress to reduce delay and get transportation projects built faster.

Stormwater Victory

ARTBA achieved a long sought after industry goal last March when the U.S. EPA issued new stormwater runoff regulations that did not include controversial “one size fits all” requirements. Originally, EPA had wanted to include a single, uniform standard for runoff on all construction sites, meaning that a project in an extremely wet area would be treated the same as one in an extremely dry area. In a variety of forums in the past five years, ARTBA consistently explained to EPA and other decision makers that, on certain projects, the proposed standards could add up to $1 million in additional costs.

Another major focus of ARTBA’s efforts was its opposition to a March 25, 2014, EPA and Army Corps of Engineers (Corps) proposed rule defining “waters of the United States.” The rule would greatly expand EPA federal jurisdiction under the Clean Water Act (CWA). Specifically, both EPA and the Corps could potentially exercise jurisdiction over roadside ditches, which could make permitting burdens and opportunities for frivolous litigation against transportation projects dramatically increase. In the past, Congress on a bipartisan basis has rejected legislation expanding EPA’s jurisdiction under the CWA. EPA is now trying to do what Congress would not.

Since 2005, ARTBA has vigorously opposed the expansion of federal CWA jurisdiction. ARTBA is a Steering Committee member of the Waters Advocacy Coalition—a collection of more than 35 industry associations that closely follow issues concerning federal CWA jurisdiction. The association submitted extensive comments on the EPA/Corps proposal and is seeking legislative options to prevent the unnecessary delay and litigation the proposed rule could bring to transportation improvement projects.

Coal Ash Victory

After seven years of steadfast advocacy, ARTBA helped achieve a significant regulatory victory on December 19 when the EPA decided not to regulate recycled coal ash as a “hazardous substance.” The decision was a “win-win” for taxpayers and the environment.

Coal ash, a byproduct of coal-fired power generation, is recycled and used in transportation construction projects, improving project lifespans and reducing material costs.  In 2007, EPA announced it was considering regulating coal ash as a “hazardous material.” 

Since that time, ARTBA has consistently opposed a “hazardous” label for fly ash in both the regulatory and legislative arenas.  ARTBA filed multiple sets of comments with EPA, supported federal legislation preventing a “hazardous” designation for fly ash and testified at public hearings held by EPA.  And in 2011, ARTBA’s Transportation Development Foundation released a landmark study that helped influence the debate. The report found the cost to build roads, runways and bridges would have increased by more than $100 billion over the next 20 years if fly ash was no longer available as a transportation construction building material. 

DBE Rule & Litigation

ARTBA also took the leading industry role in the 25-month federal rulemaking relating to the Disadvantaged Business Enterprise (DBE) program.

Upon releasing the final rule revisions late in 2014, the U.S. DOT repeatedly referenced comments submitted by ARTBA and its chapters, and specifically cited a nationwide survey coordinated by ARTBA in which nearly all contractors expected that proposed rule changes would add costs to projects, while nearly half planned to bid on fewer federal-aid projects. The rule changes were wide-ranging, but in some cases not as severe as originally drafted, largely because of strong opposition from ARTBA and its allies. The association also educated members about the final changes, hosting a series of webinars with FHWA officials and construction lawyers.

On another DBE-related front, ARTBA filed a June 20, 2014, amicus brief in a federal lawsuit (Dunnet Bay Construction Company v. Erica J. Borggren) over questionable and politically-influenced administration of the DBE program in Illinois. ARTBA stressed that if allowed to stand, a lower court’s holding would effectively eliminate the ability of contractors to challenge misapplication of the DBE program as well as cause otherwise proper bids on transportation construction projects to be rejected. Oral arguments in the case were held December 12 and a decision is expected later in 2015.

Silica Proposal

For the first half of 2014, ARTBA hosted meetings of the Construction Industry Safety Coalition—a group of associations working together to closely examine and respond to a proposed rule to regulate crystalline silica.  ARTBA safety experts testified March 27 at an Occupational Safety and Health Administration (OSHA) hearing that aspects of the agency’s proposed rule regulating exposure to crystalline silica were not feasible for the transportation construction industry.  In prepared comments, ARTBA said that the proposed permissible exposure limit (PEL) would not work for a highly transient industry where laboratory results don’t come back until long after the workers have changed locations and conditions.  ARTBA senior staff expressed concern that the rule would allow laboratories to have two years to come into compliance while contractors would be required to abide by test results soon after the rule is final.

In response to questions from the OSHA panel, ARTBA said the best approach to reducing exposure to silica is to control contact through sound work practices; monitoring for the PEL is an unworkable distraction that will not improve worker safety.  ARTBA explained to the panel that requiring the industry’s workers to wear respirators while working in high-heat and humidity conditions could actually create a greater hazard from heat stress than the possible exposure to crystalline silica.

How You Can Get Involved

Having ARTBA members participate in the regulatory process is critical to help protect our industry because of the real world experience they bring.  Federal agencies need to hear directly from those of us in the transportation construction industry about how proposed rules could directly impact our businesses, employees and home states. There are many ways for ARTBA members to participate.

The ARTBA Federal Issues Program (FIP), which is being held this year on April 13-14, is a great place for members to familiarize themselves with the regulatory issues facing our industry.  ARTBA staff will provide a comprehensive update of the current regulatory landscape as well as offer predictions about regulatory issues coming in the near future.

The association also has committees open to any member who wishes to delve deeper into regulatory discussions.  Currently, the Environmental Committee and the Contract Administration Committee offer forums for ARTBA members to gain valuable insights and participate in detailed discussions about regulatory policy.  Both of these committees will be meeting during the ARTBA FIP.

We can also help members write or submit their own regulatory comments.  While ARTBA files an average of 25 to 30 sets of regulatory comments per year, it is important that federal agencies hear personally from individual ARTBA members and companies.  Tailoring comments to a specific transportation improvement project or detailing the impacts a proposed rule will have on a particular business provides a valuable source of information for regulators.  I am always willing to help assist ARTBA members with the process of drafting or filing regulatory comments.

In 2013 alone, the federal government issued nearly 3,700 final regulations costing upwards of $1.8 trillion.  Some of these rules could have serious potential impacts on the transportation construction industry on a daily basis.  Rest assured that ARTBA continues to work in the Nation’s Capital to protect the industry’s flank, but with the direct involvement of member firms, our forces can be that much stronger in the ongoing regulatory battles.

Nick Goldstein is ARTBA vice president of environmental and regulatory affairs: