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 a long-time industry objective on stormwater runoff, 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.
ARTBA achieved a long sought after industry goal in 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 EPA standards could add up to $1 million in additional costs.
Another major focus of ARTBA’s efforts was its opposition to a March 25 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.
DBE Rule & Litigation
ARTBA 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 the year, 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 amicus brief in a federal lawsuit (Dunnet Bay Construction Company v. Gary Hanning) 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 next year.
In 2014, and in 2015 for that matter, ARTBA will remain active on the regulatory and legal advocacy front lines with the goal of always working to protect the industry’s flank.