... DISASTER RELIEF

Judge Tells FEMA to 'Get Going' on Housing Aid

A federal judge this week called the Federal Emergency Management Agency's (FEMA) handling of a Hurricane Katrina housing program "a legal disaster" and ordered officials to explain a computer system that can neither accurately count evacuees nor indicate why they were denied aid.

U.S. District Judge Richard J. Leon ruled last month that FEMA had violated evacuees' constitutional rights by eliminating their housing payments without sufficient notice.

On Wednesday, he found that that FEMA had mishandled the transition from a short-term housing program to a longer-term housing program where funding was cut and he ordered the agency to explain each decision in sufficient detail so that evacuees could make a decision whether to appeal. FEMA has appealed Leon's order.

Contact: Robert Sullivan.

Fiscal Year 2007 Highway Investment Increase in Jeopardy

Faced with having to complete action on the current year's spending measures, incoming Appropriation Committee chairs Representative Dave Obey (D-Wis.) and Senator Robert Byrd (R-W.Va)—along with the backing of Democratic leaders—have announced plans to move a joint resolution containing funding for the programs in the yet to be competed appropriation measures.

Although the terms of the resolution have not been finalized, it is possible that highway funding will remain at the FY 2006 level—resulting in the loss of $3.4 billion in highway investment. Earlier this year, the House overwhelmingly passed its version of the FY 2007 transportation spending measure.

The Senate Appropriations Committee approved its version of the measure, although it was never considered by the full Senate.

Both bills contained the full amount authorized by SAFEATEA-LU. Federal transportation infrastructure programs are currently operating under a stop-gap "continuing resolution" (CR) that provides funding for these programs through February 15, 2007. Under the CR, the highway program is funded at the fiscal year 2006 level, which is $3.4 billion below the fiscal year 2007 level contained in SAFETEA-LU.

Prior to consideration of the most recent CR, incoming U.S. House Transportation and Infrastructure Committee Chairman Jim Oberstar (D-Minn.) issued a statement urging leaders to "fulfill their responsibilities in passing appropriations acts and to honor the funding guarantees established in SAFETEA-LU."

Last week, the Transportation Construction Coalition sent a letter to Congress urging prompt action on the FY 2007 transportation spending measure, and to include the SAFETEA-LU investment levels.

For more information, contact: Jim Kolb, David Hubbard, or Robert Sullivan.

OSHA Releases Issue Agenda

On December 11, the U.S. Department of Labor issued its most recent agenda for issues under action by the federal Occupational Safety and Health Administration (OSHA).

OSHA continues to list a rule for respirable crystalline silica as a top priority issue in the pre-rule stage. OSHA has slipped its expected deadline for completion of its peer review process until the spring of 2007 at the earliest. The agenda also lists a rule for confined spaces in construction.

In January 1993, OSHA issued a general industry rule to protect employees who enter confined spaces (29 CFR 1910.146). This standard does not apply to the construction industry because of differences in the nature of the worksite in the construction industry. OSHA agreed to issue a proposed rule to extend confined-space protection to construction workers appropriate to their work environment. Action is possible in mid-2007.

OSHA also mentioned the issue of employer payment for personal protective equipment. Generally, OSHA standards require that protective equipment (including personal protective equipment or PPE) be provided and used when necessary to protect employees from hazards that can cause them injury, illness, or physical harm.

In 1999, OSHA proposed to require employers to pay for PPE, with a few exceptions. The agency continues to consider how to address this issue, and re-opened the record on July 8, 2004, to get input on issues related to PPE considered to be a "tool of the trade."

The comment period ended August 23, 2004. OSHA indicates that final action could take place in the late spring of 2007.

Contact: Randy Pence.

Mine Safety Agency Finalizes Emergency Evacuation Standard

The Mine Safety and Health Administration (MSHA) recently published a final rule in the Federal Register to revise the Agency's March 9, 2006, "Emergency Temporary Standard" (ETS) on emergency mine evacuation.

This final rule is consistent with—and made largely moot by—applicable provisions of the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), which was signed into law on June 15. Most of the final rule includes requirements for underground mines to develop evacuation plans and safety procedures in the event of entrapment.

A key provision, however, applies to all MSHA-regulated facilities, including cement plants. The accident notification provision goes beyond that included in the MINER Act to apply to all accidents—as defined by the "dirty dozen" accident types—rather than those that could result in death or entrapment.

The rule also includes a toll free number (800-746-1553) by which to notify MSHA of all accidents, in contrast to the prior option of calling an MSHA district or field office.

In comments on the temporary rule, PCA urged MSHA to adopt the more limited language already contained in drafts of the MINER Act and apply it only to underground coal mines. MSHA, however, opted for the broadest application of the 15-minute notification rule.

Contact: Tom Carter.

Circuit Court Upholds Regional Haze Rule

Against challenges from both industry and environmental groups, the U.S. Court of Appeals for the D.C. Circuit this week upheld a 2005 regional haze rule.

The 2005 rule is a key step in implementing the original 1999 regional haze rule. The challenged rule requires states to identify sources eligible for best available retrofit technology (BART) measures to reduce emissions of nitrogen oxides, particulate matter, sulfur dioxide, and other pollutants from major source categories, including cement kilns.

The industry petitions claimed that states should be required to identify the specific sources that might reduce visibility in National Parks and other protected areas, which is the objective of the regional haze provisions of the Clean Air Act.

The National Parks Conservation Association, on the other hand, believed that states should be encouraged to extract emission reductions from sources other than those built or significantly modified between 1962 and 1977, which is the current window for BART eligibility.

PCA has facilitated regional advocacy on this issue and is now shifting that focus to state advocacy.

Contact: Tom Carter.

Agency Finalizes, Then Reconsiders Cement Standard

The U.S. Environmental Protection Agency (EPA) this week signed a long-awaited final rule making changes to the portland cement national emission standard for hazardous air pollutant (NESHAP), but then issued a notice of reconsideration.

The rule addresses a requirement stipulated in a court decision issued by the U.S. Court of Appeals for the D.C. Circuit in 2000. In the decision, the court instructed EPA to reconsider an earlier Agency decision regarding potential emission standards for portland cement plants for hydrogen chloride, total hydrocarbons, and mercury.

In the rule this week, EPA finalized work practice standards for existing cement plants addressing emissions of mercury and total hydrocarbons and emission standards for these same compounds for new facilities. A limitation on the use of certain fly ashes as cement plant raw material was also in the final rule. The Agency determined that a standard for hydrogen chloride for either existing or new facilities was not warranted.

On the same day, the Agency issued a notice of reconsideration, in which EPA explained that the mercury and total hydrocarbon standards for new facilities would be contemplated further by the Agency.

The fly ash limitation will also be reconsidered. PCA will devise an approach for addressing these developments during the next few weeks, following a more thorough review of the details and contemplation of industry impacts.

Click here to see the final rule and here to view the reconsideration notice.

Contact: Andy O'Hare.

Questions about this newsletter? For more information or to unsubscribe, send an e-mail to info@washingtonbriefing.com.