Following this month's election, the NRMCA Safety, Environmental and Operations (SEO) Department staff have been working to determine what a Biden-Harris Administration may have in store for the regulatory arena. While we are mainly focused on what regulations may be coming from the different Executive Branch agencies, it’s important to also look to how the incoming 117th Congress makeup will impact the agency efforts. Despite there still being two undecided Senate seats that will likely determine which party holds control over the chamber, any outcome will undoubtably not deliver margins that would allow wholesale approval of large ticket initiatives touted during campaign season.
This Senate/legislative roadblock ultimately will create a sort of offramp for many of the potential Biden-Harris Administration proposals, dropping them directly into the regulatory realm. These different initiatives will then be stewarded through the tedious regulatory process before potential finalization by the Environmental Protection Agency (EPA), Department of Energy (DOE), Department of Labor (DOL), Department of Transportation (DOT), Department of Treasury (Treasury) and numerous others.
As we aim to read the tea leaves about what proposals may be coming down the pipeline, there are a number of resources we can look toward that provide a decent amount of clarity. Being that Joe Biden is actually a former vice president during the Obama Administration, we’d be remiss if we didn’t dust off the stacks and stacks of proposed and finalized regulations from those two terms to use as a guide. As well, there are a lot of instances of the Biden-Harris team pushing different ideas during the campaign.
The Biden-Harris website outlines the incoming administration’s direction based on four pillars: COVID-19, Economic Recovery, Racial Equality and Climate Change. However, one of the best resources might be the list of who has been appointed to the Biden-Harris Transition Team. Currently, the group of people that will be tasked with helping to shift the work of each agency from the Trump Administration to a Biden Administration is made up of what is, in all likelihood, a very deliberate and strategic spectrum of individuals. The team is largely comprised of medical professionals, academics, environmental advocates, union bosses, state elected officials, former government officials and attorneys, each signaling the direction and specific focuses we may see, not only in the next administration, but rolled out in its first few weeks.
COVID-19 - It's very likely, that outside of a flurry of nominations to different Cabinet-level positions, one of the first actions a Biden-Harris Administration will pursue will be directing the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) to address the spread of COVID-19, particularly in workplaces. The timing of a directive for this to happen versus its completion will be a guessing game; however it’s likely to be fast tracked. More of a question surrounding an ETS though, is how it will, if at all, be able to be applied and enforced in different states before a pending vaccination is available. Currently, there are a few states that either have their own ETS or specific COVID-19 targeted actions for workplaces. These current examples are likely to be some of the basis for whatever comes out of OSHA. Even more possible is that any OSHA ETS may resemble work the state of California currently has underway on COVID-19 workplace regulations, since the current head of Cal/OSHA is also a part of the Biden-Harris transition team for the DOL.
Climate Change and Environmental Issues - Likely action in the short term may also include proposals on climate change or climate change related issues such as sustainability or renewable energy. Over the last couple of weeks there has been a lot of chatter surrounding seemingly atypical and unique methods for pursuing Biden-Harris climate change initiatives. It appears that a Biden-Harris Administration doesn’t just have its sights set on the usual avenues for addressing climate change such as Congress, EPA or DOE, but also through utilizing the Treasury, DOT and the Department of Housing and Urban Development (HUD), among others. These extra focuses hold the potential for leveraging different financial motivators and weaving into policies for cars, trucks, buildings and infrastructure these same themes of climate change, sustainability and renewable energy.
Signs of this direction the Biden-Harris Administration may follow are also evident in the transition team and names currently being floated for these Cabinet positions. There is also talk of creating a “climate czar” position reporting directly to the president. The path the administration may follow will probably resemble the route outlined by the Climate 21 Project, a potential Biden climate plan blueprint. Regardless of the direction or focus of such issues, it is likely this will be a continued theme throughout the next administration. These same climate change focuses are sure to expand to discussions and actions on research and development for building materials, energy efficiency, resiliency, furtherance of battery, hydrogen and nuclear technology, and scores of others that may hold opportunities for the industry.
Despite the potential for climate change taking center stage in the next administration, we also anticipate some of the issues common to the industry to remain. The fight over the definition of what constitutes a Water of the United States (WOTUS) will probably continue, along with potential limits on discharges to groundwater, endangered species considerations, drinking water requirements, potential constricting of beneficial use of fly ash and increased permitting stipulations.
Labor and Safety - Outside of COVID-19 and climate change, there are a number of other issues that have either been given emphasis or it may be implied. This is made very plain, again, by looking at the former vice president’s previous actions and his transition team, when examining DOL and the National Labor Relations Board (NLRB). Expected to receive considerable attention are card check, wage issues, paid sick leave, union organizing, joint employers, data reporting and disclosures, independent contractors, equal pay, ethics training and, as a bit of an outlier, expansion of loosening recreational marijuana laws. Other, more safety tilted, issues may include injury and illness prevention programs (I2P2), union walkaround (inspection) guidance and new standards for backing accidents at workplaces.
Transportation - On the transportation front, we suspect regulatory activity to be robust. Pending issues will possibly include COVID-19-related travel bans and/or face covering mandates, Hours of Service (again!), 18-20-year-old drivers of commercial motor vehicles (CMVs), speed limiters, CMV insurance, driver safety fitness determinations, sleep apnea, CMV side and rear guards, CMV reflective tape, automated and autonomous trucks, large/heavy truck emissions and efficiencies, electronic stability control and radio spectrum availability for transportation-related communications, just to name a few.
Finally, it’s also important to mention that should the industry face a waterfall of regulatory activity with the next administration, in addition to the Senate there is another potential backstop for limiting and tempering Biden-Harris Administration regulatory expectations and finalizations: federal courts. Over the last four years President Trump has installed a great deal of judges to federal courts across the country; many that are friendly to industry and business interests. As we’ve seen with previous administrations, controversial regulations regularly end in litigation. These same courts with Trump judges are positioned to hear many of the lawsuits that undoubtably will stem from any number of the above-mentioned regulatory schemes.
While all of this is really just a snapshot, and by no means exhaustive, of what the next administration may pursue or how it will play out, NRMCA’s SEO team will continue to monitor developments over the coming weeks and months with an eye toward how they will impact the ready mixed concrete industry. As our attention turns to what is to come, we stand organized and prepared to communicate any changes and advocate on behalf of the industry for beneficial outcomes.
For more information, contact Kevin Walgenbach at kwalgenbach@nrmca.org.
National Ready Mixed Concrete Association