... ENERGY & ENVIRONMENT

Senate Passes Water Resources Development Bill

On Wednesday, the U.S. Senate approved by voice vote the long overdue Water Resources Development Act (WRDA) authorizing numerous U.S. Army Corps of Engineers lock and dam, harbor, and other water resources projects and studies.

The measure, more than four years overdue, was approved despite "strong concerns" expressed by the White House regarding the cost of the measure.

A provision of paramount interest to the cement industry and NACA members is the $4 billion authorization of the Upper Mississippi River and Illinois Waterway System lock and dam rehabilitation project. The provision was strongly supported by PCA because the improvements to the waterway system will enhance the efficiency and cost-effectiveness of transporting portland cement, coal, and other materials used in the cement manufacturing process.

In addition, such large-scale lock and dam projects consume large volumes of concrete and portland cement.

The House version of the bill also authorizes the waterway project.

During floor debate, Senators voted to accept an amendment offered by Senators Russ Feingold (D-Wis.) and John McCain (R-Ariz.) by a vote of 54-46 requiring peer review of all projects over $40 million. An alternative amendment offered by Senators Jim Inhofe (R-OK) and Kit Bond (R-MO) was rejected by a vote of 49-51. PCA supported the Inhofe-Bond alternative amendment.

An amendment offered by Senator McCain regarding project prioritization failed by a vote of 80-19, an alternative fiscal transparency amendment offered by Senators Inhofe and Bond was also defeated by a vote of 56-43. The Senate also accepted an amendment offered by Senator Barbara Boxer (D-CA) to expedite the study of the Folsom Dam in Sacramento.

The bill also establishes a National Levee Safety Program that develops an inventory and assessment of levees across the nation as well as developing programs and procedures for hazard reduction, among other activities. The House Transportation and Infrastructure Committee recently approved similar legislation (H.R. 4650) to establish such as program.

The House passed its WRDA bill by a vote of 406-14 last July. The next step is for a conference committee to work out the differences between the Senate and House-passed bills.

Contact: David Hubbard.

Senate Appropriations Committee Approves
Transportation Funding Bill

The U.S. Senate Appropriations Committee approved the fiscal-year 2007 Transportation-Treasury-HUD-Judiciary-DC appropriations bill. This legislation would set the investment levels for federal transportation programs in fiscal year 2007.

While SAFETEA-LU legislation enacted last year sets federal highway and transit investment levels for multiple years, adoption of the annual transportation appropriations bill makes those funds available to the states.

The bill provides $39.1 billion in guaranteed investments for the federal-aid highways program—$3.4 billion more than fiscal 2006 enacted level and consistent with SAFETEA-LU.

The measure provides $3.52 billion in funding for the Airport Improvement Program (AIP), which provides federal resources for investment in aviation infrastructure and runway improvements. This is a $5 million increase from last year's level. The Administration had proposed airport infrastructure investment be reduced by $765 million.

It is unclear when this legislation will be considered by the full Senate. The House approved its version of this spending measure in June.

After Senate consideration, the bills will have to be reconciled before a final measure is sent to President Bush. With Congress planning to recess for the month of August, and to break again at the end of September for the election, it is anticipated that the final FY 2007 transportation funding bill will not be enacted until Congress reconvenes for a lame duck session after the November elections.

For more information, contact: Jim Kolb, David Hubbard, or Kevin Voelte.

Senate Appropriations Bill Requires Rail Bottleneck Hearing

During Thursday's mark-up of the FY 2007 Transportation, Treasury, HUD funding bill, the U.S. Senate Appropriations Committee approved an amendment that directs the Surface Transportation Board (STB) to conduct a hearing on the bottleneck decisions and to publish final rules for small-rate cases.

The language, offered by Senator Conrad Burns (R-MT), was included in a package of other amendments. The so-called "bottleneck" decisions by the STB are of concern to many customers because of its anti-competitive impact. The bottleneck decisions allow railroads to preclude competition by refusing to quote rates along points of a line where there is competition.

The language also requires the STB to issue proposed regulations to provide rail shippers with a clear and expedited procedure for bringing small rates cases before the STB. PCA supported the lobbying effort to include these provisions in the appropriations legislation.

Contact: David Hubbard.

Report on Air Standards Presented at Hearing on Particulate Matter

This week the Senate Environment and Public Works Committee held a hearing to discuss the scientific foundation for the national ambient air quality standard (NAAQS) for particulate matter (PM).

Several witnesses at the hearing accused the U.S. Environmental Protection Agency (EPA) of cherry picking studies that justified lowering the daily standard for fine particulates from 65 to 35 micrograms per cubic meter, as proposed by the Agency.

Others felt that there was a sufficient body of evidence to lower the standard. EPA will send a draft of the final rule for White House review in the upcoming weeks.

At the hearing, EPA presented the findings of a new study conducted by the Government Accountability Office (GAO), which examined the Agency's procedures for establishing NAAQS. The GAO study found that EPA had adequately assessed and weighed the appropriate science and uncertainties in proposing the PM standard.

Contact: Tom Carter.

Agency Reopens Comment Period on Air Emission Rule

The U.S. Environmental Protection Agency (EPA) this week, as expected, reopened the comment period on the proposed rule, published in December 2005, that would amend the national emission standard for hazardous air pollutants for portland cement manufacturing.

The notice was published on Tuesday, July 18. The comment period will be open until August 1, 2006.

Click here and then scroll down to the section titled, "Environmental Protection Agency" for either a pdf or plain text copy of the rule.

PCA plans to supplement previous comments filed with EPA earlier this year while the comment period is open. Plans are also in place to monitor submissions to the rulemaking docket over the next few weeks so that PCA may respond, as appropriate, to new information shared with EPA.


Contact: Andy O'Hare.

Court Issues Procedural Orders in Lawsuits

The U.S. Court of Appeals for the District of Columbia has issued procedural orders addressing the current challenges to the hours-of-service (HOS) regulations.

On its own motion, the court has consolidated two separate challenges to the rules. The two challenges, filed by Public Citizen and the Owner-Operator Independent Drivers Association (OOIDA), will be considered as one case.

The Public Citizen challenge asked the court to review the final HOS regulations, issued August 25, 2005, by the Federal Motor Carrier Safety Administration (FMCSA).

The OOIDA challenge asked the court to review two provisions in the regulation, the 14-hour on-duty rule and the split sleeper-berth rule. Also, the court denied a request by Public Citizen to have the same panel of judges that heard its 2003 HOS challenge hear the current case.

The court also set a briefing schedule that concludes September 29, 2006. Arguments in the case are expected in October or November with the court's final decision expected in early 2007. (Source: J.J. Keller.)

Contact: Kevin Voelte.

Motor Carrier Safety Administration Delays Two Critical Rulemakings

The Federal Motor Carrier Safety Administration (FMCSA) recently pushed its expected dates of action back to October 2006 for both its electronic on-board recorder (EOBR) proposal and its supporting documents final rule.

The Department of Transportation's (DOT) most recent regulatory agenda, published in the April 24th edition of the Federal Register, had slated both regulatory items for action this summer.

The EOBR rulemaking would amend regulations concerning the use of electronic technology as a way to document compliance with the federal drivers' hours-of-service (HOS) rules.

The supporting documents final rule would amend the HOS recordkeeping requirements to clarify what supporting documents motor carriers must retain to verify HOS logbooks. It would also allow such documents to be retained electronically.

NRMCA has filed comments on both of these rulemakings and will carefully monitor future developments.

For more information, contact: Kevin Voelte or Robert Sullivan.

Exemption Request Open for Public Comment

The exemption request from NRMCA for drivers to be allowed to use an alternative record of duty status (RODS) was published in the Federal Register on Tuesday.

The request was made on behalf of ready mixed concrete producers and their drivers who operate in the Gulf States region, including Alabama, Florida, Louisiana, Florida, and Texas.

NRMCA is working with our individual members, state affiliates and members of Congress in the region to submit comment in support of the exemption request.

If granted, the exemption allows drivers to complete an alternative ROD when they are on duty 14 hours or less and travel interstate.

The applicable current standard requires that they be on duty for twelve hours or less, and if drivers go beyond that time limit, they are required to complete a traditional log.

Click here to view the Federal Register containing the exemption request.

For more information, contact:Tom Harman, Robert Sullivan, or Kevin Voelte.

Senate Floor Fight on Domestic Energy Production

Perhaps as early as next week, the U.S. Senate may consider legislation that would greatly expand authority for offshore drilling for oil and natural gas on the U.S. Outer Continental Shelf.

The focus of the Senate floor energy debate will likely be H.R. 4761, the Deep Ocean Energy Resources Act, which passed the House on June 29 by a vote of 232 to 187.

The legislation would be a significant step in responding to skyrocketing prices for energy and the American economy's extreme vulnerability to foreign sources of fossil fuels. It would allow much greater mining of domestic energy sources located on the U.S. Outer Continental Shelf, opening 8 million acres in the Gulf of Mexico to fossil fuels development.

Major arguments for the legislation are that rising energy prices constitute an important threat to the American economy and the manufacturing community. Further, market analysts point out that several of the most severe recessions of the latter half 20th Century occurred in confluence with rapid rises in fuel costs.

The explosion of political uncertainty and violence in and around several of the world's leading oil producer nations calls for the United States to secure its future by reducing its dependence on foreign sources, in part by expanding its domestic production capabilities.

Environmental activist groups are mounting serious political pressure on Senators to vote against the legislation. Much of the manufacturing community is responding in-kind by calling Senators to express their strong support for safe, reasonable drilling on the U.S. Outer Continental Shelf. Proponents of the legislation will need to gain 60 votes in favor to cut off an expected filibuster.

Contact: Randy Pence.

Senate Confirms Energy Regulatory Commission Nominees

The U.S. Senate last Friday confirmed three of the newest members of the Federal Energy Regulatory Commission (FERC) — Philip Moeller, Jon Wellinghoff, and Marc Spitzer.

Of interest, these confirmed appointees give the FERC what some call an unprecedented Western majority.

Moeller, a Republican, served as an energy policy adviser to former Senator Slade Gorton (R-Wash.). He most recently served as the Washington representative for Alliant Energy Corporation in Washington, DC. In addition, he served nearly 10 years as the staff coordinator for the Washington State Senate Committee on Energy, Utilities and Telecommunications. Moeller's term expires June 30, 2010.

Wellinghoff, an independent (who was strongly supported by Senator Harry Reid (D-Nev.), the Senate Minority Leader) is a Las Vegas-based attorney, who served at one time as Nevada's consumer advocate and as staff counsel to the Nevada Public Utilities Commission. His term expires June 30, 2008.

Spitzer, a Republican attorney specializing in tax law, was elected to the Arizona Corporation Commission in 2000. He also served in the Arizona State Senate. Spitzer is the replacement for former Commissioner Nora Mead Brownell. His term expires June 30, 2011.

FERC's meeting yesterday was the last for Commissioner Brownell.

The newly confirmed commissioners will most likely attend their first meeting on September 21 after being sworn in sometime in August or early September.

The new members will serve with FERC Chairman Joseph Kelliher, a Republican, and Commissoner Suedeen Kelly, a Democrat.

Contact: John Shaw.

Advisory Committee to be Formed for Earthquake Hazards Reduction Program

The National Earthquake Hazards Reduction Program (NEHRP) is the Federal Government's program to reduce the risks to life and property from earthquakes.

The 2004 reauthorization of the NEHRP directed that senior leadership for the organization be provided by a new Interagency Coordinating Committee that consists of the directors of:
........• The Federal Emergency Management Agency,
........• National Institute of Standards and Technology,
........• National Science Foundation,
........• Office of Science and Technology Policy,
........• Office of Management and Budget, and
........• US Geological Survey.

The NIST Director serves as the ICC Director. Further, the reauthorization directed that an independent advisory committee be formed to assess:
........• Trends and developments in the science and engineering of earthquake hazards reduction; ........
........• EHRP effectiveness in carrying out mandated activities;
........• The need to revise NEHRP; and,
........• NEHRP management, coordination, implementation and activities.

On June 27, 2006, the official charter for the new Advisory Committee on Earthquake Hazards Reduction (ACEHR) was established by the US Department of Commerce, parent agency for NIST. Click here for a copy of the charter.

The NEHRP will soon begin a 30-day formal solicitation period for nominations. No Federal agency employees may serve on this committee.

The official announcement for the nomination period will be published in the Federal Register, and then a copy of that announcement will be placed on the NEHRP web site under "Key News and Updates".

Contact: John Sullivan.

Corps Sets LEED Silver Standard for Military Construction Projects

A new policy calls for all of the U.S. Army's vertical military construction projects with climate-controlled facilities to be able to achieve a Leadership in Energy and Environmental Design (LEED) silver rating, starting in fiscal year 2008.

This is pursuant to the U.S. Army Corps of Engineers' Engineering and Construction Bulletin (No. 2006-2) issued May 19. The guidelines issued by the Corps will apply to new construction projects, but not renovations.

The policy includes all such military construction projects regardless of the funding source. Projects such as warehouses, with climate controlled areas of more than 50 percent, also are required to achieve the silver rating.

Contact: John Sullivan.

Judge Awards Concrete Producer in Sulfate Attack Case

The owners of 19 Mission Viejo, Calif., homes have been ordered to pay $508,000—about $26,700 each —in legal fees that Los Angeles-based National Ready Mixed Services, Inc. incurred in a construction-defect lawsuit that charged the producer had supplied defective, sulfate attack-prone concrete.

In his July 14 ruling, California Superior Court Judge David Velasquez noted, "Plaintiffs relied in large part on scientific evidence, the general acceptance of which was highly contestable. [Since] the scientific evidence necessary for each side to produce in the case is very expensive ... there is the great temptation by plaintiffs to use the cost of litigation to bludgeon a settlement out of a defendant."

Plaintiffs in the four-year-old case were seeking more than $5 million in damages tied to allegedly defective concrete for their homes' foundations.

Earlier this year, Judge Velasquez ruled the plaintiffs had failed to demonstrate National RM supplied defective concrete or that the concrete had subsequently been damaged by external sulfate attack.

"This judgment drives home the risk a homeowner takes when initiating litigation based on 'junk science,'" said William Ingalsbe, Esq., National's Irvine, Calif.-based counsel. "These homeowners may now be required by law to disclose the lawsuit and the damage asserted by their attorneys, should they sell their homes."

Contact: Robert Sullivan.

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