Lawmaker Urges Caution with Public-Private Partnerships

As public officials and industry continue to explore transportation funding options, new concerns have been expressed about public-private partnerships in transportation.

U.S. House Transportation & Infrastructure Committee Chairman James L. Oberstar (D-Minn.), and Subcommittee on Highways and Transit Chairman Pete DeFazio (D-Ore.) issued a white-paper recently that expands on points made last month in a letter to governors, key legislators, and top transportation officials in all 50 states, the District of Columbia, and Puerto Rico.  

" Where private financing is involved, PPP's can supplement—but not provide a substitute for—public investments in transportation improvements," the paper continues.

The Subcommittee has held three hearings on PPP's so far this year and will continue to study the issue as the Committee works toward reauthorization of federal surface transportation programs.
NACA partner ACPA has explored the topic of PPP's, and has urged consideration of this innovative finance mechanism as one of many variables that should be considered in highway and bridge construction and rehab.  

Click here to view the letter.

Contact Jerry Voigt or Leif Wathne.

The U.S. House Subcommittee on Transportation and Urban Development Appropriations approved legislation this week that provides $40.2 billion for the federal-aid highway program, the amount authorized in SAFETEA-LU law. 

The highway funding level includes $631 million in revenue aligned budget authority (RABA), which was not included in the Administration's FY 2008 budget plan.  NACA members supported efforts to restore the RABA funding.  The federal-aid highway program was funded at $39.1 billion in FY 2007.

The Subcommittee-approved measure also provides $3.6 billion for the airport improvement program, $85 million over the FY 2007 level and $850 million over the Administration's budget request.

The full House Appropriations Committee will likely consider the spending bill next week.

Contact David Hubbard.

Although EPA is on the verge of proposing a new ozone rule, the agency has yet to implement the rule finalized 10 years ago.  The unanimous decision on December 22 by a three-judge panel of the Court held that the rule gave some areas too much time with which to comply with the ozone standard.

The vacated portion of the rule gave mild non-attainment areas until June 2009 to attain the standard.  The provisions requiring compliance in more severe non-attainment areas by June 2007 were upheld by the Court.

Contact Tom Carter.

Supporters of the Employee Free Choice Act will attempt to bypass the committee process and "hotline" the U.S. House-passed bill, H.R. 800, to the Senate floor early next week.

H.R. 800 would replace private ballots in union elections with the very public "card-check" recognition process, where workers are forced to vote in front of union organizers by signing or not signing an authorization card. 

Currently, the National Labor Relations Act allows employees to decide whether they wish to be represented by a particular union through a federally supervised private ballot election process.  Opponents of H.R. 800 argue that the bill will subject employees to increased risk of exposure to intimidation, coercion, and peer pressure, all in an effort to obtain signatures on a majority of cards. 

The procedural vote is not expected to pass, but will coincide with a scheduled rally hosting thousands of union members calling for passage of the bill. AFL-CIO Legislative Director William Samuel has admitted that the bill does not have the necessary 60 votes to break a Republican filibuster.

President Bush threatened to veto the measure when the House passed it in March.

Contact Robert Sullivan.

Contact Tom Carter.

The U.S. Court of Appeals for the D.C. Circuit issued a decision last Friday related to a challenge to two national emission standards for hazardous air pollutants addressing commercial incinerators and industrial boilers. 

The central issue was whether facilities that burn solid waste (including those that use these wastes as a substitute for conventional fuels) should be regulated pursuant to Clean Air Section 112 provisions or those under Section 129.  Section 112 was designed to address emissions of hazardous air pollutants from industrial sources.  Section 129 was crafted to address facilities that combust solid waste. 

This matter was addressed in the proposed portland cement National Emissions Standards for Hazardous Air Pollutants in 1999, where the U.S. Environmental Protection Agency argued that individual facilities should be subject only to one standard and that the most appropriate one for cement was that under Section 112 (eventually 40 CFR Part 63, Subpart LLL). 

Also debated at the time was some type of threshold (amount of solid waste burned annually) above which a cement kiln would be regulated by Section 129, though that was rejected. 

In the incinerator/boiler case, EPA tried a different tactic and argued that facilities that recover energy from waste to fuel a manufacturing process should not be regulated under Section 129.  The court rejected these arguments and vacated the rules which would have allowed such a distinction. 

The court instructed EPA that a facility that burns any non-hazardous waste (hazardous waste facilities are specifically exempt from Section 129) should be regulated under Section 129.  It is unclear how and/or whether this will impact the cement industry (those plants that only burn non-hazardous wastes) at this time. 

It is worth noting, however, that unlike Section 112, Section 129 does not allow for "area" sources.  Any facility regulated under Section 129 would be a "major" source.  Moreover, the authority under Section 129 is broader than 112 and allows EPA to also regulate criteria pollutants as well as hazardous air pollutants. 

Click here to view a copy of the decision. 

Contact Andy O'Hare.

A group called the Coalition for a Safe Environment this week sued the U.S. Environmental Protection Agency (EPA) over the agency's rejection of a rulemaking petition the group had filed with over requirements for startup, shutdown, and malfunction plans.

Facilities subject to national emission standards for hazardous air pollutants (including portland cement plants) are required to prepare such plans to ensure that emissions are minimized when facilities are started up, shut down, or experience a malfunction.

At issue in the group's petition (as well as in previous related legal challenges) is whether these plans should be made available to the public. 

NACA partner PCA and other industry groups argued previously that these plans routinely undergo revisions to reflect changes in plant operations.  Accordingly, making them public would establish a significant and ongoing reporting burden, providing little in the way of protection of the environment. 

EPA agreed and eliminated the need for facilities to prepare these plans, though EPA was clear to specify that facilities continue to be obliged to minimize emissions during periods of startup, shutdown, and malfunctions. 

 PCA will monitor developments closely as the case wends its way through the court. 

Contact Andy O'Hare.

The U.S. House Natural Resources Committee on Wednesday approved legislation that toughens drilling standards on federal lands, promotes the development of renewable energy, and attempts to address climate change through carbon sequestration and other mitigation measures.

By a 26-22 vote, the committee approved H.R. 2337, the Energy Policy Reform and Revitalization Act of 2007. Approved mostly along party lines, the Rahall bill is part of a broader energy and climate change package that U.S. House Speaker Nancy Pelosi (D-Calif) intends to bring to the House floor before
July 4.

The bill would direct the U.S. Geological Survey to establish a peer-review methodology for conducting a nationwide assessment of underground storage capacity for carbon dioxide emissions.  Within two years of enactment, the agency would be required to produce a report focusing on deep saline formations, oil and gas reservoirs, and coal seams capable of accommodating carbon storage.

Potential sites would be ranked according to capacity and risk across the United States. The bill would authorize $30 million over five years to carry out the assessment. In addition, the Interior Department would be required to provide a regulatory framework for a potential carbon sequestration program on federal lands.

Contact David Hubbard or Jessica Hogel.

U.S. House Energy and Commerce, Energy and Air Quality Subcommittee Chairman Rick Boucher
(D-Va) has postponed until likely next week a subcommittee markup initially scheduled for Wednesday.   Scheduled for markup are five discussion drafts that would be rolled into a larger energy package that U.S. House Speaker Nancy Pelosi (D-Calif) plans to bring to the floor in July.

There are disputes in both parties over elements of the drafts which would regulate motor fuels, give financial certainty to coal-based liquids projects, and boost energy efficiency and "smart" electricity grids.

A committee spokeswoman said Boucher "wants to take some more time and work out committee issues." She said the full Energy Committee still plans to markup the package in time for Speaker Pelosi to include it in the energy package next month. Committee republicans have also expressed concern that the bills are too complicated to move as quickly as the Democrats' timetable.

Contact David Hubbard or Jessica Hogel.

Senate Appropriators Approve Funding for Veterans Affairs, Military Construction

The U.S. Senate Appropriations Committee yesterday passed the FY 2008 Veteran Affairs and Military Construction bill.  As described in the committee's press release, the Veteran's Administration would receive the following funds:

• Medical Facilities: $4.1 billion, $500 million above the President's budget request and $522 million (14.6%) above FY 2007 (excludes $595 million in FY 2007 emergency supplemental funding).
• Minor Construction and Non-Recurring Maintenance:  Additional $1 billion over the President's budget request for minor construction and nonrecurring maintenance of VA hospitals and clinics. The purpose of this funding increase is to ensure that VA facilities do not experience the same type of deterioration experienced at Walter Reed.

Funding for the Department of Defense's military construction would include:

• "Grow the Force" Initiative: $2.74 billion to support the Administration's proposal to increase the size of the Army by 65,000, the Marine Corps by 27,000, and the Guard and Reserve by 9,200 during the next five years.  
• Base Realignment and Closure (BRAC) and Re-stationing Costs: $8.17 billion for BRAC 2005, fully funding the President's budget request, to implement base closures and realignments, as well as the re-stationing of 70,000 troops and their families from overseas bases to bases in the United States.
• National Guard and Reserves: $929.8 million, $234.7 million above the President's budget request.

The bill will now move to the Senate floor for approval.  The Senate proposal differs somewhat from the House version, described in the NACA WASHINGTON BRIEFING (June 8).  The differences are expected to be reconciled in conference.

Contact John Sullivan.

House Subcommittee Chair Introduces Health Bill

Representative Lynn Woolsey (D-Calif.), Chair of the House Subcommittee on Workforce Protections, introduced H.R. 2693 on Wednesday to direct the Occupational Safety and Health Administration (OSHA) to issue a standard regulating exposure to diacetyl, a substance that gives the butter flavor to various foods, but also is suspected of causing bronchiolitis obliterans, a rare and serious disease of the lungs. (Click here to view the bill at the Library of Congress' Thomas website. Note that the site does not allow direct linking, so please enter key words or the bill number to view it.)

The bill was signed with 13 cosponsors.

The bill has no effect on the construction materials industry; however, it creates an untenable precedence because the action circumvents the process for setting OSHA health standards.

The standards-setting procedure typically includes developing a scientific record on which to base employee health rules and ensuring that affected employers have the opportunity to comment on technological and economic feasibility of implementing such a rule. 

With a legislative end-run, affected parties have no opportunity to review and comment. The bill is scheduled for markup on Wednesday (June 20).

Contact Tom Harman or Robert Sullivan.

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