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May 2020 Legislative & Regulatory Update
Washington remains focused on the COVID-19 issue. After more than a month away, the Senate officially returned the first week of May and is back in session. The House is anticipated to return soon to consider next steps in addressing the fallout from the public health crisis. While Congressional leaders were still able to work out major emergency response packages during this period, rank-and-file members want to be more involved in the development of future response and recovery packages, as well as providing the necessary oversight of the funds that have been made available.
TAUC continues to work with our partners to ensure the voice of the union construction and maintenance industry is heard in the development of the policy responses to address the public health crisis and the resulting economic stabilization and recovery.
Here is an exclusive update from TAUC on policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry.
COVID-19 Response Packages
Congress and the Administration have enacted four legislative packages to address the immediate impact of the COVID-19 pandemic:
Summaries of the various provisions impacting TAUC members, as well as links to government guidance on the various programs and provision including in these bills, can be found here.
Lawmakers are beginning to consider additional policy items and funding needed to provide additional COVID response and economic stimulus. To date, a range of issues have been raised as potential candidate for inclusion in future legislation, including:
We urge TAUC members to contact their members of Congress to include this important legislation in the next COVID response package. Additional information about this effort, as well as talking points and contact information for members of Congress, can be found here.
TAUC joined a letter with 71 other construction industry groups supporting the inclusion of long-term infrastructure investment in any future economic recovery and stimulus legislation.
OSHA COVID-19 Recordkeeping
OSHA issued revised guidance under its recordkeeping rule limiting the requirement that employers must determine whether workers were stricken with the coronavirus while on the job. Initially, OSHA had stated that coronavirus cases would have to be recorded.
Under the revised guidance, only employers in the healthcare industry, emergency response organizations such as police and fire departments, and correctional institutions will have to make the determination. Construction contractors, manufacturers, and other employers won't have to make the determination unless there's "objective evidence that a COVID-19 case may be work-related" and "the evidence was reasonably available to the employer." The guidance states that "objective evidence" includes "a number of cases developing among workers who work closely together without an alternative explanation."
Mercury and Air Toxics Standards
EPA released a final rule that scraps the legal basis for the Obama Administration's 2012 regulations on power plant emissions of mercury. The rule revoked the statutorily required finding that it is "appropriate and necessary" to curb releases of the neurotoxin, along with arsenic and other pollutants, from coal- and oil-fired power plants. EPA released a draft rule almost a year-and-a-half ago, arguing that the Obama administration's underlying rationale for what are formally known as the Mercury and Air Toxics Standards was flawed due to a heavy reliance on "co-benefits" stemming from reductions in pollutants different from those targeted by the standards to justify the expected compliance costs.
While the emissions standards will remain in place under the new rule, a coal industry lawsuit to strike the standard is possible. The rule will also set a precedent that will make it more difficult to set future air pollution curbs.
The Trump Administration published a revised rule defining which water bodies are subject to federal jurisdiction. The Navigable Waters Protection Rule is a replacement for the Obama Administration's 2015 Waters of the United States (WOTUS) rule, which the construction industry had opposed as overly broad and said could result in restriction on important infrastructure and energy projects.
Under the new rule, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) provide regulatory clarity by defining which bodies of water are subject to federal authority. The new navigable waters rule lists four categories of waters that would be subject to federal jurisdiction: territorial seas and waters used in interstate or foreign commerce; certain tributaries; lakes and ponds; and wetlands that abut any of the other three types of waters. The rule also specifies 12 sorts of waters that would not be subject to federal regulation. Among them are ephemeral streams and similar bodies of water, groundwater, ditches, previously converted cropland, artificial lakes and ponds, constructed stormwater control ponds or other features and "water-filled depressions" that are considered "incidental" to construction or mining activity. Wetlands must touch another navigable body of water to be considered under federal jurisdiction under the rule.
While the rule is expected to set off a round of litigation, it is nevertheless scheduled to take effect June 22.