For 2014, OSHA Activity Increases; Infrastructure Funding Proposals In Development

The Occupational Safety and Health Administration (OSHA) has been one of the sleepiest federal regulatory agencies for the past decade, under both Presidents George W. Bush and Barack Obama.

But it is starting to show signs of waking up. Rulemakings on crystalline silica and injury and illness reporting are finally moving forward in 2014. They could be, for the underground construction industry, one of the more notable federal policy developments in this new year.

In Congress, there are also a couple of proposals related to infrastructure construction which are percolating. There is, however, some reason for optimism since the fiscal year 2014 budget agreed to by both Democrats and Republicans contains a $22 billion pot of money to be used by the Obama administration to fund investments in education and infrastructure, which it has not been able to do since the 2009 economic stimulus bill.

OSHA’s attempts to lower the permissible exposure limit (PEL) for crystalline silica have sputtered for years. The agency has commissioned studies, held hearings and done a lot of related work in the background. But it could never bring itself to inaugurate a rulemaking.

It finally issued a proposed rule last September which would drop the PEL for quartz (the most common form of crystalline silica) in general industry from 100 micrograms per cubic meter of air (μg/m 3) as an eight-hour time-weighted average to 50 μg/m. That lower level would also apply to two other forms of crystalline silica: cristobalite and tridymite. OSHA also proposed other ancillary provisions for employee protection such as preferred methods for controlling exposure, respiratory protection, medical surveillance, hazard communication and recordkeeping. OSHA is proposing two separate regulatory texts – one for general industry and maritime, and the other for construction – in order to tailor requirements to the circumstances found in these sectors.

The OSHA illness and injury reporting improvements are probably less significant than the potential lowering of the crystalline silica PEL. The estimated costs of compliance are pretty negligible, according to the agency: $183 per year for affected establishments with 250 or more employees and $9 per year for affected establishments with 20 or more employees in designated industries. “Utilities” is one of those designated industries, so underground construction firms with more than 20 employees would have to electronically submit the summary Form 300A once a year. Companies with more than 250 employees will have to electronically submit two additional forms quarterly. Those are the Form 301 (Injury and Illness Incident Report) for each injury and illness at a covered establishment and Form 300 (Log of Work-Related Injuries and Illnesses), a compilation of all those injuries and illness. Currently, companies with more than 11 employees complete all three forms but keep them in-house. OSHA only looks at those forms in the event of an inspection. But the agency wants regular electronic reporting in order to improve its targeting of workplaces, by having up-to-date information on injuries and illnesses.

The Coalition for Workplace Safety (CWS) has already criticized the proposed rule. Composed of trade groups such as the U.S. Chamber of Commerce, National Association of Manufacturers and Associated Builders and Contractors, Inc., the CWS sent a comment to the OSHA in advance of a public meeting scheduled for Jan. 9, 2014: “This rulemaking has triggered strong reactions from employers who are extremely troubled by OSHA’s intent to make publically available employer-specific and incident-specific information.”

Of course, those groups and many other business trade associations are supportive of any efforts by Congress to provide new funding for infrastructure construction. Proposals with the best chance of passage are those with Democratic and Republican support. One which fits that bill is the Building and Renewing Infrastructure for Development and Growth in Employment (BRIDGE) Act which would establish an Infrastructure Financing Authority (IFA). The bipartisan bill was introduced by Sens. Mark Warner (D-VA) and Roy Blunt (R-MO). The IFA would provide loans and loan guarantees in an effort to incentivize private sector investment. Eligible projects would include all modes of transportation infrastructure, water infrastructure and energy infrastructure in the transmission, distribution and storage sectors.

Actually, the Senate included creation of a Water Infrastructure Finance and Innovation Authority as an amendment to the Water Resources Development Act of 2013. That bill passed the Senate and is currently in conference with the House, which passed a different version which did not include a WIFIA provision. However, even if the House accepts the amendment, Congress would have to appropriate federal funds to seed the Authority. That would be somewhat unlikely, given the congressional opposition to almost all new federal spending programs.

On the other side of Capitol Hill, Rep. Earl Blumenauer (D-OR) has introduced the Water Infrastructure Investment Act with the support of senior Republicans on the water infrastructure authorizing Committees. Blumenauer’s legislation would establish a trust fund and then create a voluntary fee program where manufacturers of products that use significant amounts of water in production or produce materials that require special filtration from wastewater could choose to add a 3 cent surcharge per unit to their product to be deposited in the trust fund. In exchange, manufacturers would be allowed to display on the product a medallion or label indicating that purchase of the product helps contribute to America’s clean water infrastructure. The revenue from this fee would go towards a Water Infrastructure Investment Trust Fund, of which 85 percent would go towards replenishing the Clean Water State Revolving Fund (CWSRF) and the remaining 15 percent would fund a Water Infrastructure Finance and Innovation Authority to provide low-cost capital to clean water infrastructure projects. Blumenauer has proposed different forms of this bill in previous Congresses and it has gone nowhere, in good part because water-using industries see it as a tax on them, which they oppose.

The American Beverage Association, which represents soft drink and bottled water manufacturers, has opposed previous iterations of the Blumenauer bill. Maureen Beach, a spokeswoman for the group, states, “While we have tremendous respect for Senator Blumenauer’s dedication to infrastructure, ABA and municipal water authorities continue to advocate for Senate language authorizing pilot programs on WIFIA.”

Attempts to authorize a supplemental funding mechanism get more feverish each year as congressional appropriations for the CWSRF and Drinking Water State Revolving Funds (DWSRF) continue to decrease. Federal agency budgets for fiscal year 2014, which began last Oct. 1, have been operating under a continuing resolution. That means they are set at the same level as in fiscal 2013, but were reduced further as a result of sequestration, the across-the-board cuts to each agency enacted in early 2013. That means the CWSRF is being funded at a level of $1.379 billion in fiscal 2014 and the DWSRF at $863.3 million. Congress was expected to eliminate the continuing resolution and set actual budgets for fiscal 2014 in an omnibus appropriations bill. Scott Berry, director, Utility Infrastructure Division, Environment and Trade, Associated General Contractors, does not expect the SRF budgets to increase over what they were in the continuing resolution. If anything, they will be reduced.

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