NEW ON THE REGULATORY FRONT
Workers' Comp Reform Bill Signed
California Pension Reform Passes
Feds Give Green Light to Start Construction on High-Speed Rail Project
Say Hello to the New Hazcom Standard
Gov. Brown Revives State Workforce Investment Board
CARB Conducts Trial Test of California’s Cap and Trade Program
New Rules Take Effect for OSHA’s Hazard Communication Standard
Three Appointed to Cal/OSHA Standards Board
California Energy Commission Sets New Energy Efficiency Rules
AGC Seeking Member Input on EPA Plans to Cut Back Self-Disclosure Program
Appeals Court Blocks Application of NLRB Posting Rule for Private Sector Contractors
AGC Study Finds Support for Tougher Laws and Penalties for Moving Violations in Construction Work Zones
AGC Leads Industry Charge and Stops Elimination of Cal/OSHA Standards Board
Cal/OSHA Launches Program Focused on Confined Space
Cal/OSHA Standards Board Again on the Chopping Block
AGC Offering All New Storm Water Sampling Course
New California Political Districts Clear Another Hurdle
National AGC Launching Grassroots Campaign
NLRB Further Delays Implementation of Posting Rule
California Pension Reform Passes
Long-sought pension reform is now in effect in California following the legislature’s passage and Gov. Brown’s September 12, 2012 signing of a measure that business groups such as the California Chamber of Commerce have described as an important “first step” towards creating a more sustainable pension system for public employees.
The Governor called AB 320 (Furutani) “the biggest rollback to public pension benefits in the history of California pensions.” The new law requires current state employees and all new public employees to pay for at least 50 percent of their pensions and sets that as the new norm for all public workers in California. It provides a potential financial lifeline to some city and county governments, which had been barred from increasing employee contributions to help pay for their pensions. In addition, the law bans abusive practices used to enhance pension payouts.
The pension reform law also increases the retirement age for new public workers by two years, and puts a cap on the salary amount that can go towards pensions.
A release on the Governor’s website pegged the savings from the new measure at “up to $55 billion in PERSs and billions more in other local pension systems.” Those savings are direly needed, as state pension costs currently are at an all-time high. Pension costs also represent the fastest-growing expenditure for local governments.
Following the passage of the pension measure, credit rating agency Moody’s Investors Service said the legislation boosts the credit outlook for state and local governments that participate in CalPERS.
Feds Give Green Light to Start Construction on High-Speed Rail Project
California’s High Speed Rail project got another green light this week when the Federal Railroad Administration approved start of construction for the $69 billion project.
The federal approval issued September 19, 2012 is said to be the last of four votes needed before the project can get underway. However significant hurdles still lie ahead, including expected legal challenges to the federal approval on top of state lawsuits filed against the project by several groups a few months ago.
Several construction firms are currently in competition for the first $2 billion contract that will cover the first portion of the line that will be built in the Central Valley.
Gov. Brown Revives State Workforce Investment Board
Earlier last week California Gov. Brown announced the appointment of a mix of 30 business, labor and education leaders to the revived state Workforce Investment Board, a private sector-led entity that is designed to identify industry needs and create career pathways to help put unemployed and underemployed Californians back to work.
The board will seek to address the disparities seen in California between the needs of some industry sectors and the skills of the workforce.
Labor leaders including those representing the construction industry are among the board appointees, including Louis Franhimon, business manager and executive secretary of the Napa-Solano Building Trades Council, among others. The Board also includes leaders from throughout state government and the Legislature, including Health and Human Services Secretary Diana Dooley; Employment Development Department Director Pam Harris; Superintendent of Public Instruction Tom Torlakson, California Community Colleges Chancellor Jack Scott, Department of Apprenticeship Standards Director Diane Ravnik and Labor & Workforce Development Agency Secretary Marty Morgenstern.
For a complete list of the new board members, click here.
New Rules Take Effect for OSHA’s Hazard Communication Standard
As of May 25, 2012, new rules are in effect for the federal Hazard Communication Standard (HCS) put out by the Occupational Safety & Health Administration (OSHA). The most significant changes are in the areas of hazard classification, labeling, safety data sheets an information and training. The standard is set to be phased in over the next several years.
First adopted by federal OSHA in 1985, the HCS was designed to provide information on chemicals to users so that appropriate precautions could be taken in the handling of various hazardous substances. The federal standard was originally modeled after California’s own Employee Right-To-Know requirement.
AGC of California Safety & Health Council members Joel Cohen and Mark Golembiewski of The Cohen Group pointed out some of the major changes in the new standard, including:
- Hazard classification: Specific criteria will now be used to classify the health and physical hazards of each chemical, as well as to classify mixtures. One controversial category included in the revised HCS is for “Hazard Not Otherwise Classified.” This category can be used to address combustible dusts and to cover other issues for which there are no prescribed hazard classifications.
- Labels: Chemical manufacturers and importers will be required to provide a label on the product packaging that includes a harmonized signal word, and a pictogram, hazard statement and precautionary statement for each hazard class and associated hazard category.
- Safety Data Sheets: No longer called ‘Material Safety Data Sheets’ (MSDS), the new SDSs will now have a specified 16-section format that will ensure consistency in the presentation of information. OSHA is retaining the requirement to include the American Conference of Government Industrial Hygienists (ACGIH) Threshold Limit Values (TLVs) on the SDS in the revised Standard.
- Information and training: Employers are required to train workers on the new label elements and the new safety data sheet format to facilitate recognition and understanding.
For additional information on these changes, click here.
As Cohen and Golembiewski point out in an upcoming article for AGC’s California Constructor magazine, Cal/OSHA has not yet indicated when it will likely issue an update to its HCS standard (8 CCR 5194) and what differences if any there may be from the federal standard. The state regulatory agency will have six months to ensure its standard is “as effective as” the federal OSHA standard, so changes are expected by the end of the year that will impact everyone who must currently comply with the Cal/OSHAs version of the Hazard Communication Standard.
Stay tuned for more!
Three Appointed to Cal/OSHA Standards Board
Gov. Jerry Brown on Wednesday announced three new appointments to the Cal/OSHA Standards Board.
David Harrison, of Suisun City, has been the director of safety at Operating Engineers Local 3 since 2008, where he was a business representative from 2005 to 2008 and a marine construction worker from 1995 to 2005. He is a member of Operating Engineers Local Union 3, the Napa Solano Central Labor Council and the Napa Solano Building and Construction Trades Council.
A second appointee, Barbara Smisko, of Berkeley, has been the executive director of national environmental health and safety at Kaiser Permanente since 1994. She was senior staff representative for environmental compliance at United Airlines from 1991 to 1994, project manager at ENSR Corporation from 1988 to 1991 and a trainer at IT Corporation from 1985 to 1988. Smisko is a certified safety professional and a member of the American Society of Safety Engineers and the Disability Management Employer Coalition.
The third appointee, Laura Stock, of Berkeley, has been associate director at the Labor Occupational Health Program at the University of California, Berkeley since 1982. She was program administrator at the Occupational Health Service at the University of California, Berkeley from 1985 to 1987, health educator at Roxbury Comprehensive Community Health Center from 1980 to 1981 and a counselor at Dimock Community Health Center from 1977 to 1980. Stock is a member of the National Institute for Occupational Safety and Health, the National Occupational Research Agenda Committee and the American Public Health Association.
None of the positions require Senate confirmation.
California Energy Commission Sets New Energy Efficiency Rules
The California Energy Commission recently approved new energy efficiency standards for both new homes and commercial buildings, a move designed to reduce energy consumption in California structures but which also may well raise costs on the front end.
The Commission voted unanimously on May 31, 2012 to tighten energy efficiency standards for commercial buildings by 30 percent and for new homes by 25 percent when the new 2013 Building Energy Efficiency Standards take effect on January 1, 2014.
The new standards, also referred to as “Title 24,” tighten regulations governing such systems as lighting controls, hot-water pipes, windows, insulation and various other systems in both new construction and building additions.
The new standards have long been in the works, driven by California’s “zero net energy” goals for new homes by 2020 and commercial buildings by 2030.
According to the California Energy Commission, the new Standards on average will add some $2,290 to the cost of constructing a new home but will return more than $6,200 in energy savings over 30 years.
For more detailed information on the new energy standards approved last month, click here.
AGC Seeking Member Input on EPA Plans to Cut Back Self-Disclosure Program
AGC of America is seeking member input to gauge response to a reported plan by the U.S. Environmental Protection Agency (EPA) to possibly end its program allowing regulated companies to self-disclose environmental violations.
Since 1995 EPA’s so called “Audit Policy” has incentivized thousands of companies to voluntarily disclose and correct environmental violations in exchange for reduced (and sometimes waived) fines and penalties. However, the Agency has plans to cut back its Audit Policy program to “a minimal national presence.” AGC is currently evaluating the value of having the self-disclosure option – particularly when managing mergers and acquisitions, and is seeking member input so that it can provide industry input to EPA on this issue.
In dealing with anticipated budget cuts, the EPA Office of Enforcement and Compliance Assurance (OECA) has recently issued a draft “Program Manager Guidance” directed to the Agency’s regional offices that, if finalized, would instruct EPA’s regional offices to spend no resources processing self-disclosures under the Audit Policy effective October 1, 2012, the start of the agency’s 2013 fiscal year.
Outside legal experts predict that EPA will proceed to de-fund its audit program if the regulated community does not stand up for the policy and its value. If this program is used widely by the membership, AGC will draft a comment letter to EPA laying out the construction industry’s views of why this change in direction is a serious mistake. To weigh in on this issue contact AGC Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.
EPA acknowledges that it receives “a significant number” of disclosures each year. In FY 2011 alone, EPA received disclosures from 458 companies covering 855 facilities. But the Agency estimates the environmental benefits from those disclosures to be significantly less than from traditional enforcement. In addition, the disclosures generally have not focused on reducing pollution that poses the greatest threats to public health and the environment, according to draft national Program Manager Guidance for FY 2013.
The FY 2013 draft guidance is available online. More information on EPA’s FY 2013 planning and budget is online, here. EPA’s Audit Policy Web page can be found here.
Appeals Court Blocks Application of NLRB Posting Rule for Private Sector Contractors
The latest legal development in the dispute over the National Labor Relations Board’s new regulation to require most private-sector employers to post certain notices informing employees of their rights will delay the original April 30 effective date of the rule at least until fall, and may permanently invalidate the regulations, according to a recent notice by the California Chamber of Commerce.
In April, the U.S. Court of Appeals for the District of Columbia granted an injunction pending appeal of a legal challenge to the rule brought by the Coalition for a Democratic Workplace, of which AGC is a member, and co-plaintiffs. With oral argument on the merits of the appeal not set until September, this effectively means that the Board may not enforce the April 30 effective date of the rule. The regulation will not go into effect – and employers need not display the poster – until fall at the very earliest, if at all. The rule could become permanently invalidated by the court or rescinded by the Board.
The ruling in the Appeals court in the District of Columbia is separate from and follows a decision by a U.S. District Court in South Carolina issued about a week earlier. That court ruled that the Board’s regulation was invalid, but its decision only extended statewide. The present decision enjoining implementation of the regulation applies nationwide.
These cases and the Board’s regulation also should not be confused with a similar but separate regulation by the Department of Labor requiring federal contractors to post a similar notice of employee rights. That rule remains in effect.
AGC will continue to update members on developments.
Cal/OSHA Launches Program Focused on Confined Space
The California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) is stepping up its focus on confined space issues, recently announcing the launch of a special initiative aimed at preventing worker deaths and injuries in confined spaces in worksites across the state.
Cal/OSHA rolled out a statewide Confined Space Special Emphasis Initiative on February 8, 2012. Confined spaces may be encountered in virtually any industry, with construction being one industry where it is a particular concern. Cal/OSHA said the goals of its program are to:
Increase awareness of employees and employers of these hazards.
Provide resources, online materials, training, and consultation to prevent injuries and deaths
Increase enforcement efforts to ensure all employers have adequate confined space programs and training at their workplaces.
As part of this initiative, Cal/OSHA issued a Confined Space Hazard Alert to help employers and employees identify confined space situations and take immediate steps to protect workers.
“Employers in California are responsible for identifying and mitigating risks in the workplace,” said Department of Industrial Relations Director Christine Baker. “This initiative and the Confined Space Hazard Alert provide specific information so that employers can identify when confined space hazards exist and special precautions must be taken.”
The initiative follows investigations of confined space deaths and injuries in California—in different industries and different situations. In 2011, seven workers were killed on confined space incidents in California, including two young brothers in Kern County overcome by toxic gases in a recycling drainage tunnel.
Cal/OSHA begins its yearlong campaign on confined space hazards in collaboration with partners in labor, industry, public safety agencies and other safety and health groups. AGC of California has offered ongoing training on confined space and plans to offer new classes in the near future, according to Kate Smiley, Manager, Safety and Regulatory Services. For the latest training programs available from AGC, click here.
The Cal/OSHA campaign stresses the importance of the requirement that businesses have plans in place to identify confined space at their workplaces, notify and train employees, and ensure that on-site rescue plans are in place. These requirements include having a written confined space plan, procedures to test the air quality inside the space, proper employee and supervisor training prior to entering confined spaces and having effective rescue procedures in place which must be immediately available on site.
Cal/OSHA has posted confined space hazard materials on its website, here.
Cal/OSHA Standards Board Again on the Chopping Block
Once again the Cal/OSHA Standards Board is on the chopping block, a move that is opposed by the AGC of California, The California Chamber of Commerce and a coalition of more than 35 industry groups.
The elimination of the Cal/OSHA Standards Board is slated to be the subject of budget subcommittee hearings in the Assembly on March 7 and the Senate on March 8.
The board was first targeted for elimination last year, but opposition from business and labor groups halted the effort.
Savings from eliminating the board are minimal. The Board is funded by an employer assessment with no General Fund money, and Board members receiving only a small stipend of $100 per meeting and travel expenses. Last year’s proposal by the governor to eliminate the board would have netted a relatively modest $324,000 in savings from the 2011-12 budget.
The Governor’s proposal calls for transfer of responsibility currently held by the Cal/OSHA standards board to the Division of Occupational Safety and Health within the Department of Industrial Relations.
Under the current California model, mandated in the state’s Labor Code, the three branches of Cal/OSHA mirror the federal tripartite system. DOSH is the equivalent of the executive branch, the Standards Board the legislative and the Cal/OSHA Appeals Board the judicial branch.
The Occupational Safety and Health Standards Board (Standards Board) is the standards setting agency within the Cal/OSHA Program. As such, the Standards Board is the only agency in the state authorized to adopt, amend or repeal occupational safety and health standards or orders. In addition, the Standards Board maintains standards for certain areas not covered by federal standards or enforcement.
All workplace safety regulations must pass the board; they must pass the approval of a majority of board members. This backstop ensures that proposals are fully vetted by interested parties, and that board staff has considered all sides of the issue, ultimately justifying any proposal that is brought before the board.
Stay tuned for more on this important issue and on AGC’s ongoing efforts in this arena.
AGC Offering All New Storm Water Sampling Course
Complementing its full range of educational and training programs, AGC of California is offering an all new Storm Water Sampling course in both Northern and Southern California that will satisfy the training requirements for Sample collectors under the construction General Permit in California.
Industry expert Marvin H Sachse - CESSWI, CPESC, QSD, QSP, ToR, will lead the 4 hour hands-on storm Water sample collecting, analysis, and reporting class. The instructor has been trained in the SWAMP QAPP protocol and his class satisfies the Construction General Permit Sampling Training requirements.
This course is open to anybody that is required to collect or measure storm water discharges, including QSD’s, QSP’s, site superintendents, sediment and erosion control people. Attendees are encouraged to bring their own equipment for additional familiarization.
Certificates of Completion will be provided at the conclusion of the course.
The new Storm Water Sampling Course will be held on April 5 from 1-5 p.m. at National University - Costa Mesa Campus, and again on May 3 at the AGC of California Concord Regional office. Cost is $159 for AGC members an $199 for non-members.
For more information call Ryan Famularo at (925) 827-2422 or visit the online training courses, here.
New California Political Districts Clear Another Hurdle
As reported in the Sacramento Bee this Tuesday, the new redrawn political districts in California cleared another challenge January 17th when the U.S. Department of Justice ruled that they do not dilute minority power in four counties that are under federal oversight: King, Merced, Monterey and Yuba counties.
Approval was necessary due to the federal Voting Rights Act of 1965.
The ruling responded to a Republican-backed coalition, Fairness & Accountability in Redistricting (FAIR), which had challenged the legality of the new state Senate maps and, in particular, the areas of Monterey and Merced counties. FAIR had contended that the commission should have taken into account past voting patterns to draw districts in a way that gave minorities a better chance to elect candidates representing the interests of the majority of voters in that district.
The commission has countered that its maps were drawn taking into account public comment and using the criteria approved by voters.
The new Senate districts have been of concern to Republicans who believe they favor Democrats and could give the party a two-thirds majority in the next election.
National AGC Launching Grassroots Campaign
With only 80 days remaining until the expiration of the latest highway and transit authorization extension, AGC is kicking off a comprehensive grassroots and communications campaign asking Congress to take action on a reauthorization bill before March 31. The campaign, called Make Transportation JOB #1, will continue to build momentum for passage of a reauthorization bill.
Over the next several weeks AGC Chapters, members and business colleagues will be asked to:
- Send letters to their House and Senate members
- Sign a petition expressing support for passing a highway and transit bill
- Use a complete grassroots toolkit -- available on the AGC website -- with sample letters to the editor and guidance about arranging effective meetings with your representatives and senators.
The Make Transportation JOB #1 campaign will officially kick off soon. For more information, please contact Sean O’Neill at 202-547-8892 oneills@agc.org.
NLRB Further Delays Implementation of Posting Rule
As reported by AGC of America recently, the National Labor Relations Board (NLRB or Board) has again delayed the effective date of a new regulation requiring nearly every private-sector employer to post a particular notice informing employees of their rights under the National Labor Relations Act.
Amid legal challenges to the Board’s authority to issue the regulation, the Board first postponed the original effective date of Nov. 14, 2011, to Jan. 31, 2012. On Dec. 23, the Board further pushed back the date to April 30, 2012, stating that “postponing the effective date of the rule would facilitate the resolution of the legal challenges.”
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