Report of the MCAA Legislative Committee

SILICA
As Chair of the Silica Task Force under Mark Kemp, MCAA continues to lead the effort to put together a set of alternatives to the OSHA draft proposal to regulate workplace exposures to silica which was released in August of 2003. We are in the process of writing the Task Force document and expect to have a draft by the early part of May. Once that document has undergone extensive analysis by the Task Force and key MCAA members, we will determine additional steps which must be taken to present persuasive arguments to OSHA as to why our approach is preferable, i.e. technologically and economically feasible. OSHA is still in the process of finalizing its risk assessment - the analysis which will determine the necessity and extent of any silica rule they may ultimately propose. That analysis has been put on the back burner somewhat due to the court imposed deadline to finalize a standard on hexavalent chromium (see below). Once the risk assessment is completed, however, we expect that the agency will move forward with a rule. It is our hope that the document being written by the Silica Task Force will provide significant guidance and direction to OSHA as to the most effective means of regulating the construction industry and protecting the health of our workers.

In California, CAL-OSHA has scheduled a meeting to review 14 air contaminants, including silica. The State has under consideration a proposal to lower the PEL to .010 ug/m3 - or one tenth of the existing OSHA Permissible Exposure Limit. It is a well known fact that the technology only exists for a reliable test for exposures at .50 ug/m3. At this writing, the State has only done a risk assessment and the analysis is comprised exclusively of data collected from the mining industry; they have no data on construction.

MCAA is working with the California chapter to develop and submit comments on this proposal prior to the May meeting and members from California will also be present to offer testimony as to the infeasibility of reducing the PEL to such an extreme level and stress the impact such a change would have on the masonry industry and indeed all of construction. Should the State of California be successful in moving forward with its proposal, it would set a terrible precedent for the rest of the country and have additional ramifications for our ability to put a reasonable standard governing silica exposures in place at the national level.

HEXAVALENT CHROMIUM
As most of you may be aware, OSHA is under a court-imposed deadline to finalize a standard governing workplace exposures to hexavalent chromium by January 18, 2006. The rule has been controversial for several reasons. First, many in organized labor believed there was ample justification to include wet Portland cement in the scope of the rule. Industry (and OSHA) argued against it because (a) there is insufficient scientific evidence to support its inclusion and (b) costs would far outweigh the benefits; exposure concerns already addressed in existing standards for Personal Protective Equipment and the like. Aside from that, because the recommended Permissible Exposure Limit (PEL) is so low, many of the stakeholders in the manufacturing sector have made it known that they would close their doors rather than spend exorbitant amounts of money to upgrade their facilities in an attempt to comply with such a stringent standard, the costs of which have been put in the neighborhood of $5 to $7 billion. In recent weeks, however, new information has come to light which would support a significant adjustment in the risk assessment and a higher PEL. As such, the primary stakeholders will likely seek an extension with the courts in order to bring this new information to OSHA's attention and amend the rulemaking to reflect the new scientific evidence. This is a very positive development and further illustrates the problems associated with court orders to impose a rule on key sectors of our economy.

ASSOCIATION HEALTH PLAN LEGISLATION
Members of the House and Senate have again introduced legislation which would allow small businesses to pool their resources and make health insurance more accessible and affordable for their employees and their families. The House Committee on Education and the Workforce reported its version of the legislation to the full House recently and a vote is expected very soon. During the last Congress, the House passed AHP legislation by an overwhelming margin with the help of more than 30 Democrats. We fully expect the 109th Congress to vote as decisively.

In the Senate, Senators Snowe of Maine and Talent and Bond of Missouri introduced S. and it has garnered many more cosponsors this Congress than in previous years. What is even more encouraging is that during the week of April 18, both the Senate Committee on Small Business and the Senate Committee on Health, Education, Labor and Pensions will be holding hearings on AHP legislation and discussing the health care needs of small businesses. This is a very positive development. The issue has not been heard by the Senate HELP Committee for quite some time and Senator Enzi has made it clear to the Association Health Plan coalition, which includes MCAA that he intends to work with us to get a bill to the floor this year. In fact, Senator Enzi has told the Blue Cross Blue Shield companies that they can no longer "just say no" to AHP legislation; they have to present to the committee some recommendations and/or changes to the bill which they could live with. While I've little doubt that these negotiations will be difficult, I am confident that, with the overwhelming support of members of the House, we will be able to get some form of AHP legislation acted on this year. I encourage MCAA members to write their Senators and urge their support of this vital legislation.

APPRENTICESHIP TRAINING LEGISLATION
During the last Congress, MCAA's Director of Government Affairs, Marian Marshall, worked very closely with Congressman Mark Foley (R-FL) and his staff to put together a bill to provide an enhanced tax deduction for companies with an apprenticeship training program certified either by the Department of Labor or a State Apprenticeship Council. In order to qualify for this enhanced deduction, the costs of training must meet or exceed one percent of a company's overall labor costs. This approach also had the support of the International Brotherhood of Electrical Workers and the Building Trades division of the AFL-CIO. We expect Congressman Foley to reintroduce this bill in the very near future and efforts will be made to include it in a broader tax bill should it be developed later this year.

2005 LEGISLATIVE CONFERENCE
As members may be aware, MCAA will hold its Legislative Conference in Washington, D.C. June 26-28. For those of you who haven't given much consideration to attending, I encourage you to do so; I can assure you it will be worth you time and an experience you won't soon forget.

We have arranged to have a number of speakers, including Senator Jim Talent of Missouri, Mike DuHaime, the Political Director of the Republican National Committee, and Congressman Pete Sessions of Texas. Still other speakers have been invited. Senator John Cornyn who serves on the Senate Judiciary Committee has been asked to speak to our group about tort reform and immigration. Also invited is Jonathan Snare, the Acting Assistant Secretary of Labor for OSHA, to discuss regulatory initiatives of the agency. We also have several meetings with key members of the House of Representatives. In my view, however, the highlight of the Conference will be the special briefing that the White House has agreed to arrange just for MCAA to bring members up to speed on Social Security reform, Homeland Security efforts and Immigration. This briefing will be held in the Old Executive Office Building right next to the West Wing of the White House. This will be a tremendous opportunity for MCAA members to meet with senior White House staff and visit with Members of the House and Senate, all of whom make policy decisions directly impacting the business community. Please don't miss out on this event.

MCAA POLITICAL ACTION COMMITTEE (MACPAC) ACTIVITIES
Thanks to the many generous contributions of its members, MCAA's Political Action Committee (MACPAC) has played a key role in electing pro-business candidates to Congress. In 2004, MACPAC supported the Senate elections of John Thune of South Dakota, Richard Burr of North Carolina, and Jim DeMint of South Carolina and the elections of House members Pete Sessions and Jeb Hensarling of Texas.

In the upcoming 2006 races, MACPAC has already begun to get involved in the reelection efforts of Senator Jim Talent of Missouri and George Allen of Virginia. In September, MCAA and MCAA of St. Louis will be hosting an event with a few other construction trade groups for Senator Talent. In addition, MCAA has been working with other members of the Association Health Plan coalition to arrange a luncheon honoring Senator Mike Enzi (R-WY), Chairman of the Senate HELP Committee, to thank him for his efforts on AHP legislation and encourage him to move forward expeditiously on the bill. On the 27th of April, MCAA will also co-host an event for Congressman Pete Sessions (R-TX); Mr. Sessions and his staff have been of tremendous help to MCAA on the silica issue and the Congressman is a strong proponent of AHP legislation.

This year, MCAA has established a Political Education Fund which is the administrative arm of our PAC. Members can make contributions to the Political Education Fund (PEF) with a corporate check. This special fund has been set up to cover PAC expenses for member voting surveys, travel to PAC events and get-out-the-vote initiatives. Thursday night from 6:00 to 7:00 p.m. we will be hosting a PAC event in the Regent Room in the Fairmont Hotel. I encourage all of you to attend this event and support our political efforts. There is a possibility that our special guest that evening may be Congressman Don Manzullo of Illinois, Chairman of the House Committee on Small Business. Congressman Manzullo is a true champion of small business issues and I hope all of you will make an effort to come meet him and thank him for his hard work on our behalf.

ASBESTOS LEGISLATION
Many of you may be aware of the legislation currently being drafted by the Senate Committee on the Judiciary to establish a trust fund to compensate victims of exposure to asbestos. This legislation is extremely controversial and its fate is still in question.

MCAA has numerous concerns about this bill; for instance, the way the bill is now drafted, it might be possible for someone to file a claim for asbestosis in one venue and file a subsequent claim for silicosis. We have asked Senator Cornyn of Texas to make changes to the bill to ensure that there is no "double-dipping". In addition, there are some very troubling criminal penalties in the bill for violations of the OSHA asbestos standard which could set a horrible precedent for other standards. The bill also would require a company which violates any provision of the asbestos standard to pay extensive fines into the trust fund to help cover the costs of compensation. MCAA's position is that the establishment of this trust fund might set yet another precedent for all air contaminants classified as human carcinogens (think silica). In our view, it would be far more beneficial for Congress to enact legislation similar to that adopted in the State of Ohio and currently under review in Texas to put strict medical criteria in place so that those who are truly sick from exposures to asbestos and/or silica can have their claims addressed promptly. The system in place now is subject to far too many abuses and the courts are backlogged with fraudulent claims. Should the Senate Judiciary Committee move forward with a bill, we are hopeful that it will remedy some of these very valid concerns.

OVERHAND BRICKLAYING EXEMPTION
Members should be advised that in Arizona recently a contractor was cited for failure to have fall protection on both sides of the wall when employees were pouring grout in to reinforce it. OSHA compliance officials do not believe that grouting falls within the context of "construction" of the wall and is therefore NOT covered under the overhand bricklaying exemption.

Because this citation is being contested, OSHA officials are very limited in their ability to investigate the matter beyond merely asking for all the facts surrounding the case - which they have done at my request. Unfortunately, from what I'm told by the OSHA Chief of Staff, the compliance officer believes this citation is justified, so it will run its course and we will have to wait to see what the Administrative Law Judge decides.

There are several issues I've raised with OSHA which we will likely have to pursue once this case is settled. First and foremost, I think OSHA's interpretation is way off base. How can you brace the wall with scaffolding on both sides? If you don't have scaffolding, are you going to tie employees off for fall protection? How is grouting not considered part of the "construction" process?

Arizona is a state-plan state; they have written the standard so that grouting IS included in the overhand bricklaying exemption. Under federal law, states standards must meet or EXCEED federal standards and, in most instances, state standards are more stringent. So I've asked OSHA whether or not that means Arizona will be required to change its standard. Time will tell.

In the meantime, because we have called so much attention to this issue, OSHA compliance officials are very sensitized to it. The compliance officer who wrote the citation in Arizona has been given a refresher course on all aspects of the exemption and been told to be extremely careful about future inspections where he might have to deal with it.

SENATE HELP COMMITTEE HEARING ON OSHA AND SMALL EMPLOYER ISSUES
I was recently informed by staff at the Senate Committee on Health, Education, Labor and Pensions that the Subcommittee on Employment and Training which is chaired by Senator Johnny Isakson of Georgia, will hold a hearing some time in May on OSHA and small employer issues.

There is a possibility that MCAA may have a member testify on our behalf at this hearing. If any of you have any concerns you'd like to be brought before the committee, please get in touch with me directly either via email at mjmarshall@masoncontractors.com or by phone at 703-671-4468. I'd appreciate having the benefit of your views.