TAUC Legislative & Regulatory Update, November 2019
Impeachment drama is threatening to crowd out many items on the legislative agenda for the remainder of this year. While the House and Senate continue to work on reaching agreement on fiscal year 2020 spending bills, annual disputes over issues like providing funding for the border wall and the overall challenging political environment makes a long-term Continuing Resolution (CR) into 2020 likely and a government shutdown possible. The federal government is currently operating on a CR through Nov. 21.
It remains to be seen what other agenda items will or can be considered during the House impeachment proceedings. There are hopes that the renegotiated NAFTA (the United States-Mexico-Canada Agreement) could be approved, but those discussions remain ongoing. There is also hope that there could be action on multiemployer pensions. The announcement that Murray Energy – the last significant coal operator contributing to the United Mineworkers pension fund – plans to file for bankruptcy has sped up the pending insolvency of the United Mineworkers pension plan, and may force Congress to act to address this pension crisis sooner rather than later.
Against that uncertain background, here is an exclusive update from TAUC on policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry.
Multiemployer Pension Reform
House Ways and Means Chairman Richard Neal (D-MA) has suggested that one way to get labor support for the United States-Mexico-Canada Agreement (USMCA) would be to tie the trade pact to legislation addressing the multiemployer pension crisis. He suggested the possible inclusion of H.R. 397, the "Rehabilitation for Multiemployer Pensions Act" (the Butch Lewis Act) as a way to get necessary Democratic support to approve the trade agreement. It is unclear how seriously this suggestion is being considered. While Neal is the House's lead negotiator on both the trade pact and pension reform, H.R. 397 — in its current form — would not receive support from a majority of the Senate.
We continue to expect the Senate Finance Chairman Charles Grassley (R-IA) to release a white paper outlining Senate Republican plans for legislation to address the multiemployer pension crisis. Based on discussions with his staff, the plan under consideration would be very different from Butch Lewis. It would not rely on loans to failing plans (as called for in Butch Lewis), and would instead focus on the partitioning of plan "orphan liabilities" (i.e. unfunded vested liabilities associated with withdrawn employers) and other tools to allow trustees to proactively manage plans. The Grassley plan is also likely to include discussions related to multiemployer premiums and plan funding requirements.
The Trump Administration has initiated a review of the way it issues environmental permits for infrastructure projects. The goal of the review is to speed up National Environmental Policy Act (NEPA) reviews for roads, bridges, ports, pipelines, power lines, Internet trunks, and water systems. The White House Council on Environmental Quality (CEQ) sent the proposed changes to the Office of Management and Budget (OMB) on Oct. 11. After OMB reviews the proposal, a notice of proposed rulemaking will be issued for public comment. The proposed update to the rules for implementing procedures under NEPA, if it becomes final, is almost certain to be challenged in court.
OSHA Weighting System — The Occupational Safety and Health Administration announced a new "OSHA Weighting System (OWS)" that is intended to replace the existing "Enforcement Weighting System (EWS)". OSHA states that the OWS is designed to ensure that the agency focuses its enforcement activities on areas where the agency's efforts can have the most impact in preventing fatalities and serious injuries. Enforcement of the new system began on Oct. 1. OSHA lists falls, being struck by an object, electrocutions, and being caught in/between structures, machines, or equipment as the leading causes of fatalities in the construction industry. In the past, OSHA used the number of completed inspections as a primary metric to measure enforcement activity. Under the new OWS system, federal safety inspections involving criminal investigations and often-fatal hazards will now be given greater weight when tracking enforcement and other OSHA safety efforts.
Silica — TAUC joined its partners in the Construction Industry Safety Coalition (CISC) in responding to OSHA's request for information regarding silica exposure limits for the specific equipment and tasks. The CISC's response called for OSHA to include consideration of engineering and work practice control methods that effectively limit exposure to silica for a wider range of equipment and tasks specifically identified in a table published as part the final rule. This could provide employers with more flexibility and reduce regulatory burdens while maintaining protections for employees.
Beryllium Exposure Standard — OSHA is also proposing to revise the rule establishing Permissible Exposure Limits (PEL) for occupational exposure to beryllium and beryllium compounds for the construction and shipyards industries. This rule was initially issued during the Obama administration and has undergone several revisions and compliance postponements. OSHA began enforcing the beryllium standard for general industry in 2018. In its Oct. 10 Notice of Proposed Rulemaking (NPRM), OSHA discusses tailoring the exposure limits to recognize the unique nature of the construction industry. The proposed standard would focus on limiting airborne exposures, not both airborne and dermal exposure as required under the General Industry Standard. The agency states that materials and processes used in construction and shipyards do not raise the same level of concern with dermal contact as with employees working in General Industry.