Legislative News

in the lobby

By: zoe baldwin

Days can feel like weeks recently with the deluge of news and executive orders as the state works to cope with the fallout from the COVID-19 pandemic. This missive comes to you from mid-May as Governor Murphy and the legislature look for strategies to reopen safely and begin the State’s steep climb toward economic recovery.

Our industry, for the most part, has been blessed to be able to continue working. Governor Murphy’s executive orders kept public works jobsites open and thousands of workers employed as much of the state was forced to shut down. UTCA CEO Bob Briant, Jr. worked very closely with the Governor to keep us working and is grateful for the Administration’s partnership and consideration during these unprecedented times.

As for the legislature, public participation in the age of social distancing has taken on a different look. The Senate and Assembly now convene virtually, and interested parties can register to call-in and provide testimony remotely. There have been several voting sessions and committee hearings now as the body works to pass legislation relating to the pandemic and frontline workers. At this time, they are not hearing legislation relating to other issues, but are expected to start taking on recovery-focused legislation in the coming weeks.

FISCAL FOCUS One bill recently signed into law extends the State fiscal year to September 30, three months past the usual June 30 deadline. The move buys the state more time to analyze the impact of the coronavirus and stay-at-home orders on tax collections and to rewrite the budget accordingly. The Governor initially revealed his proposed budget in February and the budget committees had begun to hold hearings, but the process was interrupted by the shutdown.

The state’s financial outlook is vastly different than it was before the outbreak of COVID-19 and in response, the Department of Treasury has frozen nearly $1 billion of current spending from its planned $41 billion FY20 budget. UTCA continues to work closely with the Administration, Legislature, and relevant departments to ensure all capital program operations will be fully funded and proceed without issue.

GIVE ME JUST A LITTLE MORE TIME The legislature has also moved to codify and supplement some of the Governor’s executive orders, such as recent legislation that effectively extends state permits to protect existing approvals from expiring due to the COVID crisis. This legislation is a corollary to Governor Murphy’s Executive Order 136, which relaxes DEP deadlines for issuing environmental permits as well as reporting deadlines for recycling and solid waste facilities.

ESSENTIAL WORKER PROTECTIONS Senate President Steve Sweeney and Assemblyman Tom Giblin have introduced legislation creating a rebuttable presumption that should an essential employee contract coronavirus, the contraction of the disease is considered work-related and fully compensable for the purposes of “ordinary and accidental disability retirement, and any other benefits provided by law to individuals suffering injury or illness through the course of their employment,” which includes workers compensation. The bill does contain language referencing job duties that require interaction with the public, but it is not as strong as we would like.

The bill has been passed by the Senate Labor Committee and will now advance to a vote by the full senate. During the committee hearing, the chairman and committee staff consistently referenced the bill as being applicable only to essential workers whose job entails public interaction, despite the weakness of that clause. UTCA has expressed concerns on behalf of the industry and has been working with the Senate President.

While we certainly understand that this legislation is not ideal, there are a few important things to note:

• The bill explicitly states that “any workers’ compensation claims paid as a result of the rebuttable presumption shall not be considered in calculating an employer’s Experience Modifier Rate or otherwise affect an employer’s insurance premium rate for the employer’s workers’ compensation policy” and

• OSHA has stated that this will not be considered in the OSHA 300 log

• UTCA fought hard to classify our jobsites as essential so we could keep working; now, we must keep those arguments in mind as we ask to be removed from the consequences.

ONE BID PACKAGE TO RULE THEM ALL As we have previously reported, one of UTCA’s highest legislative priorities is to standardize bid packages for projects bid under Local Public Contracts Law. We are pleased to report that the effort is steadily advancing following a recent meeting with interested parties including the Municipal Engineers, the League of Municipalities, the

County Engineers, the Association of Counties, NJ Department of Transportation, and NJ Department of Community Affairs. We have begun to receive specific feedback on our draft proposal and are working to update the document to reflect input from that conversation.

While we don’t have a precise understanding of when the legislature will begin considering non-COVID/recovery bills, our aim is to have this proposal introduced and ready to go. We look forward to keeping you updated as this long-awaited measure advances.

DIRTY DIRT In January, Governor Murphy signed into law legislation that expanded the scope of businesses needing to acquire an A-901 license and set a registration deadline of April 20, 2020. However, in early May Governor Murphy signed Executive Order 136 which, among other things, extended this deadline due to the coronavirus. Prior to the EO, UTCA had been awaiting DEP guidance regarding applicability to businesses conducting generally accepted construction practices, as this issue was incredibly unclear from initial Department guidance.

The intent of the legislation was to increase regulatory control over soil and fill recyclable material services. UTCA was neutral as it moved through the legislative process because the language was specific to those businesses and did not include self-generators in the licensing provisions.

UTCA Director of Utility and Environmental Operations, Dan Kennedy, has been on the ground in this effort and has been working directly with NJDEP to ensure that implementation of the new law does not extend past the sponsors’ intent. We are glad for this extension from the Governor and will continue to work toward a rational roll out of the new law.

LESSONS LEARNED UTCA is in the process of developing a package of policies that respond to some of the lessons learned operating in a partial state shutdown. For now, we are focused on two main concepts: how to be better prepared for work under any future shutdown and how to be prepared for speedy procurement in the face of budget deficits and possible federal stimulus funding tranches. We’re looking to sure up the way construction is defined in the case of any future shutdowns; to make sure local governments are better prepared to continue bidding and awarding work under extenuating circumstances; and to ensure the state is well positioned to get any stimulus funding out to bid as quickly as possible. We look forward to sharing more detail on these policies as they develop.

WITH A LITTLE HELP FROM THE FEDS At the time of this writing, Congress has yet to introduce an infrastructure-based stimulus package, despite the fact that the concept enjoys bi-partisan support in congress and backing from the President. UTCA has been in regular contact with our Congressional delegation voicing support for this tried-and-true economic recovery measure, and has also been working with our national association, the American Road and Transportation Builders Association to that end.

We have also been in contact with House Transportation & Infrastructure Committee staff regarding a possible recovery bill, advocating that the plan should avoid the previous focus on “shovel-ready” projects and should include the toll-credit marketplace provision that passed in the recent Senate surface transportation bill. Staff was receptive to both points.

On the water front, we have been advocating through the Clean Water Construction Coalition for a number of items that would be helpful to a jobs-based recovery including: for the reauthorization of the Clean Water SRF at $40B and the Drinking Water SRF at $25.4B; for permanent flexibility for states to transfer funds between the two SRFs; and for the EPA to require State SRFs to streamline the review and approval process for the replacement / improvement of existing water infrastructure assets as a condition of these funds.