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ICPI Government Affairs Update
Wednesday, November 19, 2014
Randall G. Pence, Esq.
Capitol Hill Advocates, Inc.
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Update/status on successor bill to MAP-21, status of ICPI authorizations language
Specific post-midterm election update: the most important result is that in the 114thCongress will see the Senate switch to Republican control. For the purposes of the successor bill to MAP-21, we may expect some greater cooperation between the House Transportation and Infrastructure Committee (T&I) and the Senate Environment and Public Works Committee (EPW) in terms of developing a proposal, or possibly series of proposals, to pass a new authorization bill.
Of course, President Obama and his Administration remain relevant. The Senate Republicans have won simple majority control of the Senate, but the margin of their majority is not sufficiently large to overcome unified filibusters by the Democrats (which would require a 60-vote supermajority) or to override a Presidential veto (which required a 67-vote supermajority). Politically, this means that some Democratic support will be necessary to pass a Transportation Authorization bill, which is ICPI’s natural subject matter target for the next tranche of ICPI PICP language.
The principal hurdle for such a bill will be a funding mechanism, the tax aspects of which are a concern for conservative Members of both parties and on both sides of Capitol Hill.
The GOP will see its greatest impact in the Senate EPW Committee, where action to move a bill out of committee and onto the Senate Calendar does not require supermajority votes.
While there was some speculation (not within ICPI) that a successor to MAP-21 might pass during the current lame duck session, it is clear to ICPI and most professional stakeholders that this would be politically impossible. All efforts to pass a long-term successor bill will be focused on the spring and summer of 2015. There may be some short-term extensions, while the stakeholders and many Members do not want to rely upon extensions of current authority. ICPI shares this antipathy for a series of temporary extensions.
Senator James Inhofe (R-OK) will Chair the Committee. ICPI looks forward to working with Chairman Inhofe and his staff.
On the House side, Chairman Bill Shuster (R-PA) will retain his gavel (as expected) and Cong. Peter DeFazio (D-OR) will continue as Ranking Member. ICPI looks forward to working with both Members and their staff.
Background on the ICPI legislative proposal for the successor bill to MAP-21: ICPI has presented its legislative proposal to the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee.
The language was prepared in consultation with the ICPI Government Affairs Committee. The proposal was approved at the 2013 Pittsburgh meetings.
The proposal represents a sequential follow-on to the legislation that ICPI added to MAP-21.
It expands the USDOT authorization to include demonstration projects for specific purposes.
Further, it includes training of state and local transportation authorities with respect to ICP, a need that has surfaced based upon ICPI’s work with the LTAPs and confirmed in private meetings with FHWA staff.
Once again, ICPI has asked Committee staff to place the language in any draft bill in the lesser controversial R&D section of the successor bill. We know that Committee staff are assembling the core of the next bill, and are vetting language submissions at this time.
The language offered by ICPI on Capitol Hill appears below:
Interlocking Concrete Pavement Institute (ICPI) Legislative Proposal to Congress
Topic: Interlocking Concrete Pavers (ICP) language
For Successor Transportation Authorization Legislation to MAP-21
(For insertion in R&D chapters)
“The Secretary [of Transportation] is authorized to engage in activities to overcome barriers to adoption of permeable, pervious, and porous pavements by state and local transportation authorities. Such activities may include: training of such authorities on design, construction, and maintenance of such pavements through Local Technical Assistance Program centers or other means. The Secretary is authorized to conduct research on full scale load testing that validates mechanistic design methods resulting in structural design methods for street and highway applications for travel lanes and road shoulders that decrease environmental impacts and enhance sustainability. The Secretary is authorized to conduct projects that demonstrate 1) flood control and stormwater pollutant and volume reductions, including mitigation of impacts from super-storms and hurricanes; 2) life cycle assessment and life cycle cost analysis compared to conventional impervious pavements, and air pollution reduction. Demonstration projects may include re-use and integration of pavements with other cost-effective water conservation practices designed to treat, reduce or remove pollutants by allowing stormwater runoff to return infiltration similar to predevelopment hydrologic conditions, and stormwater harvesting.”
The presentment went well, meeting all expectations.
On May 15, 2014, the Senate Environment and Public Works (Senate EPW) Committee reported out its base version of a bill as S2322, the MAP-21 Reauthorization Bill.
Senate EPW decided to settle on a bare-bones six-year bill based on current spending figures, which all parties agree is too low for the projected need. But, this allowed the Committee to pass a basic bill out of committee on a unanimous vote.
The bare-bones approach removed nearly all controversy from the bill at this level. The relevant votes to pass the Senate bill out of committee occurred with no debate and took well less than five minutes.
The price for bipartisanship and unanimity was to not include any of the "materials-specific" provisions sought my many of the transportation stakeholders including ICPI. Nearly all stakeholders who have materials-specific issues faced the same situation.
The purpose of this approach was to 1) "get the ball rolling" (a quote from Senate EPW Chairwoman Barbara Boxer) in the Senate and 2) spur the other Senate committees to act on their parts of S2322.
The 113th Congress legislation will die soon with adjournment sine die. We will have new bills introduced in the 114th Congress.
MAP-21 funding extension status, political impacts, effect on successor bill
Lame duck update: one of the most critical items that Congress must do in the lame duck is pass some manner of funding bill to continue Federal funding into 2015. Then Congress will adjourn for Christmas, and the 114th Congress will seat in January and continue. At this time, we expect Congress to pass a short-term Continuing Resolution (CR) that would extend/keep in place existing funding; the background material appearing below would remain current.
Background: immediately prior to the commencement of the 2014 August recess on Capitol Hill, the House and Senate agreed on a funding extension of MAP-21. MAP-21 was scheduled to expire on September 30; however, the Office of Management and Budget (OMB) warned that funding for MAP-21 projects could run out at the beginning of August. The Hill decided to extend the funding to the end of May, 2015. ICPI regards the extension as necessary to avoid disruption of funding on transportation construction projects, some of which benefit ICPI members as suppliers. However, ICPI would have preferred an earlier extension deadline, such as December 2015 as proposed by Senate EPW Chairwoman Barbara Boxer. ICPI continues to work with other Transportation industry stakeholders to maintain the pressure for a longer-term successor bill. ICPI prefers that the congressional dialogue continue and not await May 2015.
Such discussions for a longer-term bill continue. There is general agreement that Congress needs some funding mechanism that does not rely solely, or perhaps even in part, on an increase in the federal gasoline tax. Leaders in Congress are continuing discussions behind the scenes to arrive at an acceptable funding formula. ICPI encourages such discussions. The nation needs a new Transportation bill, sooner than later, and one will pass eventually – most likely with the ICPI legislative proposal included.
EPA regulatory proposal to expand Waters of the United States (WOTUS), ICPI involvement
EPA and the U.S. Army Corps of Engineers (USACE) have jointly proposed a regulation that would substantially expand the legal definition of waters that constitute Waters of the U.S.
(WOTUS = Waters of the U.S., a critical legal determination in establishing the geographic jurisdiction of EPA authority to enforce the Clean Water Act.)
The proposal is highly controversial in the construction and development industries. It would substantially expand the authority of the federal government to regulate development in and around bodies of water of many sizes. The impacts are numerous. But the impacts of greatest direct importance to markets for ICP is that it could vastly expand the reach of EPA in requiring stormwater runoff mitigation – and thus the use of ICP – to meet federal clean water goals.
In July 2014, EPA and USACE held a public forum on the issue.
As would be expected, the business community, in the form of a 30+ membership coalition, criticized the proposed rule for lack of specificity, unintended consequences, the need for a SBREFA panel to consider small business impacts downstream of the rule, and more.
EPA defended its position strenuously. The most interesting comment is that EPA feels the proposed rule will actually restrict WOTUS determinations. Virtually no outside of EPA believes this assertion.
Probably the most likely areas for expansion of EPA authority as a result of the rule should it go final is that it would expand waters around tributaries, impoundments and wetlands that would send water (and pollutants contained therein) into those waters that are more traditionally considered jurisdictional under CWA. This would seem to fit well with the notion that the proposed rule will have an important downstream impact on construction, stormwater runoff, etc., which brings in mitigation technologies like ICP.
An important point raised in the forum: there has been some confusion that, because USACE is so prominently involved in this rulemaking, that the rule is targeted to the Section 404 dredge and fill program. But that is a narrow interpretation. The rule will have much broader impact.
With the Republicans controlling both sides of Capitol Hill during the 114th Congress, we expect hearings on both sides of the Hill to coalesce strong criticisms of the WOTUS rule, and possible appropriations efforts to deny funding for any action to implement the rule.
ICPI did file public comments in November of 2014 on this proposed rule. In brief, ICPI placed on the record the argument that it is not technically or economically infeasible to implement any stormwater consequences of this rule; PICP makes it technically and economically feasible, using well-known, off-the-shelf, commercially available PICP products, to comply with any manner of stormwater regulation that the WOTUS rule would impact and expand.
EPA work on expanded stormwater regulatory schemes, impact on ICP use
EPA announced in 2014 that, rather than promulgate a new stormwater regulation for both new construction and existing facilities, it would work with state and local entities to promote best practices and encourage state and local efforts to implement stormwater reduction actions at that level.
EPA continues to list ICP as a mainstream means to reduce stormwater reduction and enhance water infiltration in situ.
We continue to assess and monitor whether and how EPA will be able to implement its strategy. EPA has been under court order to issue a federal regulation; it remains to be seen whether the original plaintiffs will seek further court action to force EPA’s hand with regard to a regulation.
Nonetheless, ICPI is in a position to continue to provide technical assistance to EPA staff to be channeled to state and local entities, specifically how ICP may be integrated into new designs in a way that is functional from a stormwater drainage standpoint. We advise on ongoing positive relationship with EPA staff, including using EPA to all possible extent to highlight and distribute ICP information generated by ICPI. We will continue to monitor “green” activist group efforts to force EPA to issue a formal regulation.
Silica regulation update, likely future action
Proposed regulation highlights
Update post-midterm elections: 2014 has seen enormous action on the proposed silica rule, as detailed in the background materials below. We expect most of 2015 to be dominated by OSHA considering all of its comments. We will expect a major spike in activity in 2016 as the Obama Administration races to finalize this regulation before the President leaves office.
In 2015, we will likely see the business opponents of the silica regulation joining with Hill Republicans to convene congressional hearings on this issue, and possible appropriations efforts to deny funding to OSHA to proceed. In that sense, 2015 could be an active year on legislative and political elements to slow or stop this rule. We do expect a request for a new SBREFA review which, if successful, could prevent the rule from becoming finalized prior to President Obama leaving office.
We will recommend that ICPI continue its efforts on this issue, focusing on the two coalitions that ICPI joined to file joint comments opposing the regulation. These coalitions may be ICPI’s best mechanisms to move the fight to the legislative and political arenas.
Background on the proposed rule and why it is so controversial, and ICPI’s action in response: OSHA did indeed propose to reduce the Personal Exposure Limit (PEL) to a more restrictive level than is required today, and would require engineering changes for employers to adopt to comply with the rule. These are the broad parameters that would entail significant cost, liability and alterations in how ICPI members conduct business – and which trigger ICPI’s quite intense interest.
The proposed regulation on silica would indeed have a major impact on all ICPI members. The structure of the proposal separates construction from general industry and maritime, which affected ICPI’s response.
The major components of the proposed rulemaking for both construction and general industry (including manufacturing):
§ Measure the amount of silica that workers are exposed to if it may be at or above an action level of 25 μg/m3 (micrograms of silica per cubic meter of air), averaged over an 8-hour day;
§ Protect workers from respirable crystalline silica exposures above the PEL of 50 μg/m3, averaged over an 8-hour day;
§ Limit workers' access to areas where they could be exposed above the PEL;