AGC Response to Sixth Circuit Stay Dissolution

Source: Claiborne S. Guy, director, employment policy & practices, AGC of America

On Friday, December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the OSHA Vaccination and Testing Emergency Temporary Standard (ETS). This decision allows OSHA to proceed with implementation and enforcement of the rule issued on November 5, 2021. AGC is a party to the proceedings in the Sixth Circuit, having filed its own petition for petition for review, and is actively engaged in a review of its legal options moving forward. AGC will continue to keep its chapters and members updated on any future developments.

To account for any uncertainty created by the Fifth Circuit’s stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

In an effort to assist members with increasing the vaccination rates among their workforce and to comply with the ETS requirements, AGC created a vaccine tool kit webpage which contains a construction oriented summary of the ETS detailing employers compliance options and obligations as well as additional resources. If you have any questions, or for more information, please contact Kevin Cannon at kevin.cannon@agc.org or Nazia Shah at nazia.shah@agc.org.

Stormwater Master General Permit in Final Stages

The Indiana Department of Environmental Management (IDEM) is in the late stages of a process transitioning from a permit by rule to a Master General Permit (MGP) for the three stormwater programs currently administered through Indiana Administrative Code (Rules). The three programs effected are Construction Stormwater (“Rule 5”) (327 IAC 15-5), Municipal Separate Storm Sewer Systems (“MS4s”) (327 IAC 15-13), and Industrial Stormwater (327 IAC 15-6). The change was spurred in 2016 via urging of the United States Environmental Protection Agency (US EPA).

IDEM developed draft language and engaged an advisory group in 2017. The advisory group, including representation from ICI, ACEC, INDOT and several other local and statewide stakeholder groups, met with IDEM leadership in multiple sessions throughout 2017 and 2018 to review and discuss draft language, current practices, and improvements. Brian Wolff, IDEM surface water and operations branch chief recently sent a notice to advisory group members thanking them for their participation.

“The draft language presented to the advisory group was vastly different from the output representing compromises for stakeholders and significant collaboration,” said Wolff, when asked about successes of this effort.

As an advisory member, ICI’s Director of Government Relations Dan Osborn appreciated IDEMs openness and active listening to considering stakeholder input throughout the process.

After finalizing the language in 2018, IDEM submitted the document to US Environmental Protection Agency (EPA) for review. After two years of review, public comment sessions, and revisions, IDEM received a notice of “non-objection” from the EPA. Wolff explained that the permits have been submitted to the Indiana Governor’s office for signature consideration. After 15 days, the permit will be submitted to the Indiana Secretary of State’s office for further processing. The permits become effective after a 30-day wait period post publishing of the final language. Wolff noted that owners or permittees of current permits will need to file for an “amendment-continue of coverage” under the new MGP within 90 days of the MGP effective date. IDEM cannot continue coverage under 327 IAC 15-5 for projects that will continue to operate once 327 IAC 15-5 is repealed.

IDEM has posted a copy of the MGPs and associated public comments/questions and has scheduled two public information sessions. Please see information and links below.

The information session on the Construction Stormwater General Permit will take place on November 16th at 10:00 AM
Zoom Link : https://zoom.us/j/94985414355?pwd=ak9kRXlHakZBOGtRdldkVHRPU1Q0Zz09&from=addon
Telephone: 301-715-8592 or 312-626-6799 or 646-876-9923 or 346-248-7799 or 408-638-0968 or 669-900-6833 or 253-215-8782
Meeting ID: 949 8541 4355
Passcode: 841374
Question Form: https://forms.office.com/g/1rXLXQyX8v

The information session for the MS4 General permit will take place on November 30th at 10:00 AM
Zoom link: https://zoom.us/j/92346799028?pwd=bWR1YksveGgvckZJVmFlNm1SdExTZz09&from=addon
Telephone: 312-626-6799 or 646-876-9923 or 301-715-8592 or 253-215-8782 or 346-248-7799 or 408-638-0968 or 669-900-6833
Meeting ID: 923 4679 9028
Passcode: 710924
Question form: https://forms.office.com/g/GAS7dWxbBB

ICI Successful in Preserving Critical Sales Tax Exemption

Construction safety equipment and materials purchase transactions remain tax exempt with the passage of the 2021 Senate Enrolled Act (SEA) 383 which became effective on July 1. ICI worked with Indiana Department of Revenue (DOR) leadership during 2020 which laid the ground work for an opportunity to propose an amendment to Indiana Code during the 2021 Indiana legislative session. SEA 383 created a statutory exemption (IN Code 6-2.5-5-55) for Indiana state sales tax for purchases of safety related equipment and materials purchased for public works construction contracts.

Previously, exemption language was solely published in the DOR’s Information Bulletin #60 up until 2017. The DOR published a revised IB #60 on July 28, 2021. The exemption applies to purchases of equipment such as barrels, barricades, temporary signs, temporary erosion control and drainage materials, but does not apply to purchases of personal protective equipment such as gloves, face masks and high visibility clothing.

Please contact Dan Osborn with general questions about this topic. Consult with a ICI member tax or legal professional for technical assistance and advice.

USDOT Requests Comments About DBE Good Faith Efforts

The USDOT recently published a request for comments concerning the costs of documenting and submitting Disadvantaged Business Enterprise (DBE) Program Requirements.

Comments are requested about 17 DBE requirements, most of which are isolated to efforts of federal fund recipients. Recipients of federal funds examples include Departments of Transportation, transit entities and airports. Item number nine (9), Submitting Evidence of Having Made ‘‘Good Faith Efforts’’ To Secure DBE Participation in DOT-Assisted Contracts, requests comments from contractors in addition to recipients. Comments should include information and data concerning time and cost committed to documenting and submitting good faith effort documentation when requested.

Written comments should be submitted by August 16, 2021.

You may submit comments [identified by Docket No. DOT–OST– 2021–0072] through one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the online instructions for submitting comments. • Fax: (202) 493–2251. • Mail or Hand Delivery: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Room W12– 140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: Marc D. Pentino, (202) 366–6968, marc.pentino@dot.gov or Aarathi Haig, (202) 366–5990, aarathi.haig@dot.gov/ Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation.

EYE SAFETY

Many Americans say that losing their eyesight would have the greatest impact on their day-to-day life – more than losing a limb, their hearing or their ability to speak.

Wearing ANSI Z87 protective compliant eyewear (which costs less than $10) can prevent serious eye injuries. OSHA’s personal protective standard (1926.102[b]) requires that protective eye and face protection meet or exceed the test requirements of ANSI Z87.1. The ANSI Z87 identification is typically located on the eyeware frame. The protective eyewear must also have side shields built into the design, or attachable side shields that meet the above-referenced ANSI standard.

COMMON CAUSES OF EYE INJURY

  • Striking or scraping – Most eye injuries are caused by airborne fragments like dust or other small particles from tools and equipment hitting or scraping the eye. Keep in mind that dust or other materials can accumulate on the eyebrows or on the bill of a hard hat and can dislodge and fall into the eyes.
  • Chemical splash – Industrial chemicals or cleaning products are common causes of chemical burns.
  • Thermal burns and radiant energy – UV rays or thermal gases produced during welding can result in serious damage.

FIRST AID

If you get something in your eye, don’t rub it. You can scratch your cornea or drive the fragment in even deeper, resulting in a more serious injury. This increases the likelihood of infection. To remove a particle from your eye, flush the surface with clean water or a sterile saline solution and seek medical attention.

PRESCRIPTION EYEWEAR

To meet OSHA’s personal protective requirement, prescription eyewear must also meet the test requirements of ANSI Z87.1 (1926.102[b]). The ANSI standard also requires prescription eyewear to have side shields built into the design or attachable side shields. Average prescription eyewear provides no impact protection against flying debris. An impact could shatter the lens, embedding it into the eye and creating a greater injury.

Download a printable PDF and recording form here.

Members can download the audio version of this toolbox talk soon.

2021 Safety Program Awards Instructions

Eligibility

To be considered for an award, applicants must meet the following eligibility requirements:

  • Current ICI membership.
  • No serious and/or “knowing” IOSHA citation associated with a work-related fatality since January 1, 2018.
  • Must have one or more active jobsites available for visit during August and September 2021.
  • Must allow random and unannounced jobsite walk-throughs and worker interviews.
  • Award recipients must work with ICI’s Safety Committee to participate in a safety roundtable gathering in early 2022.

Completing the Application

The ICI application process consists of:

  • Interactive application form which is filled in and submitted electronically once you have completed all of the requested information. Each section of the application clearly states what is required for that section.
  • The application form will also request some independent documentation. These documents must be submitted as PDF files and included as attachments when you submit your application.
  • SurveyMonkey will save your data in your browser until you click done at the end of the survey. After you click done, you won’t be able to edit the application. It’s best to collect all your information and complete the application in one sitting.

Deadline

Applications are submitted electronically and must be received by Aug. 13, 2021. All applications, at a minimum must include OSHA 300A logs for 2018, 2019 and 2020, EMR data for 2018, 2019, and 2020 and a copy of the company safety program to be considered complete. Unanswered questions will be considered as “not applicable” responses.

Confidentiality

To ensure fairness in the judging process, ICI will remove all identifying information, such as company name and address, from the applications and supporting documentation before providing information to ICI’s Safety Program Awards Selection Committee.

Contact

Please contact Jim Wood at jwood@indianaconstructors.org or by phone at (317) 634-7547 if you have questions or issues submitting the application data.