ConstructionConnections

The Newsletter of the Associated General Contractors of New HampshireMarch 14, 2016

A y o t t e t o A t t e n d A G C P o l i t i c a l L u n c h e o n - R e g i s t e r N o w P a g e 1 1

Are You Prepared for the 2016 Construction Season?

Mileage Based User Fees

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Contents

March 14, 2016 p NH Construction Connections p 3

Industry News4 Sixth Circuit Says i t wil l Decide Legality ofControversial WOTUS Rule 4 Are you Prepared for the 2016 ConstructionSeason?5 Get Ready for the Season with Online Training7 An Arm and a Leg and the 2015 InternationalEnergy Conservation Code

Association News11 Last Call : Sign Up for the ConstructionOverview Seminar11 Start Gett ing Ready for the 2017 Build NHAwards11 March Issue of Safer Roads Now Available11 AGC of NH Polit ical Luncheon Series -Register Now

Construction Connections (USPS 389-890) is published bi-weekly by the Associated General Contractors of New Hamphsire Inc. 48 Grandview Road, Bow, NH 03304. Annual subscription rate is four copies per Active membership, eight copies per Active membership paying the maximum dues amount, and two copies per Associate membership. Annual subscription rate is $200. Members can purchase annual printed subscriptions for $100 each. Unused sub-scriptions will be distributed at the discretion of the Chapter Office Executive Vice President. Periodical postage paid at Concord, NH 03301. Postmaster: Send address changes to the Associated General Contractors of New Hampshire, 48 Grandview Road, Bow, NH 03304 or contact us at (603) 225-2701 or fax (603) 226-3859.

Are You Prepared for the 2016 Construction Season?

Page 4

Registration Open for Construction Overview

Seminar

Page 8

Mileage Based User Fees

Page 5

Industry News

Sixth Circuit Says it will Decide Legality of Controversial WOTUS Rule - Nationwide Stay Remains in Effect The U.S. Court of Appeals for the Sixth Circuit recently decided that the federal appellate court and not the district courts should resolve the pending legal disputes over the new “Waters of the U.S.” (WOTUS) rule. Importantly, for now, the nationwide stay of the rule remains in effect. The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) are using the prior regulatory definition of WOTUS and applicable guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.

The Sixth Circuit’s decision has generated a tremendous amount of chatter. Here are the immediate take-aways for AGC members:

• The Sixth Circuit’s stay (issued last year) of the 2015WOTUS rule will continue in effect. If the court haddetermined that it did not have legal authority to hearand decide the legal challenges, the stay would haveautomatically ended.• There is a case underway in the Eleventh Circuitwherein the court could reach a contrary decision thatlitigation over the WOTUS rule should be heard at thedistrict court level. A conflicting decision from theEleventh Circuit could tee up the “venue” matter (i.e.,whether the WOTUS legal challenges should be heardin federal district or appeals courts) for Supreme Courtreview.• It will probably be quite some time until the case inthe Sixth Circuit advances to the point where the courtwill address the merits of the claims that the WOTUS ruleis unlawful. At that point, the issue of the nationwidestay may be revisited.• For the foreseeable future, the agencies are using theregulations codified in 1986 [33 C.F.R. §328.3 (Corps); 40C.F.R. §122.2 (EPA)] and the 2008 Rapanos Guidance tomake jurisdictional determinations or take other actionsbased on the definition of WOTUS.• It is unclear whether district courts outside of theSixth Circuit states (of KY, MI, OH and TN) have to abideby fractured (1-1-1) opinion that appellate court is theproper venue to hear challenges to the 2015 WOTUSrule. Lawsuits have been filed in at least 12-13 districtcourts outside the Sixth Circuit – and those cases may (ormay not ) proceed on a parallel track. Perhaps the mostprominent of those is the ongoing challenge brought infederal district court in North Dakota by that state andtwelve others. The court in that case issued a preliminaryinjunction against the rule last August.

AGC of America will closely monitor and report on WOTUS developments as they happen on its Environmental Web Page at www.agc.org/environment. If you need additional information, please contact AGC’s Leah Pilconis at pilconisl@agc.org.

Are You Prepared for the 2016 Construction Season?With the start of the construction season just weeks away, March is the perfect time to ensure that your company is meeting safety and labor law requirements. Failure to comply with laws and requirements can have severe impacts from fines to injuries or even fatalities. The following article provides information and resources to help contractors prepare for the 2016 construction season.

New Hampshire’s Top Ten Labor Law Violations in 2015:1. Failure to pay all wages due for hours worked, fringebenefits, breaks less than 20 minutes, etc.*RSA 275:43 and Lab 803.012. Failure to keep accurate record of all hours worked.*RSA 279: 27 and Lab 803.033. Failure to pay 2 hours minimum pay at their regularrate of pay on a given day that an employee reports towork at the request of the employer.*RSA 275:43-a and LAB 803.03 (h),(i),(j)4. Illegal employment of workers under 18 (not havingproper paperwork, hours violations, or working in ahazardous environment).*RSA 276-A: and Lab 10005. Failure to secure and maintain workers’compensation coverage and misclassification ofemployees.*RSA 275:42 I & II and RSA 281-A 6. Employment of Undocumented Workers Prohibited*RSA 275-A: 4-a7. Illegal deductions from wages.*RSA 275: 48 and Lab 803.02(b),(e),(f)8. Failure to pay minimum wage for all hours worked. *RSA 279:219. Failure to have a written safety plan, joint lossmanagement committee and safety summary form, ifrequired.*RSA 281-A:64 and Lab 602.01, 602.02, 603.02, and 603.0310. Failure to provide written notice to employees of theirwage rate, pay period, pay day and a description of fringebenefits, including any changes.*RSA 275: 49 and Lab 803.03

Mandatory Labor Law PostersNew Hampshire’s legislature requires all employers to post a number of labor law posters to educate employees of the rights and resources available to workers in the state. These posters must be posted in a conspicuous place in the office.

4 p NH Construction Connections p March 14, 2016

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March 14, 2016 p NH Construction Connections p 5

Mileage-based user fees (MBUF) are an alternative way to finance the construction and maintenance of roads. Rather than the current gas tax method, which is based on the amount of fuel purchased at the pump, a VMT tax is based on how many miles are driven. A mileage-based user fee system has been proposed in the US and elsewhere in the World as an infrastructure funding mechanism to replace the gas tax.

Since 2000, gas tax revenues have declined significantly as a result of less driving, increasing fuel efficiency and decreasing purchasing power. As such, we are only investing about 40 percent of what is necessary to meet the needs of surface transportation infrastructure at all levels of government.

As gas tax revenues dwindle, policymakers in the U.S. have had to divert billions from the general fund and other non-transportation funds to pay for infrastructure. This is increasing pressure on transportation policy makers to search for new, viable road financing mechanisms.

Five Myths: Misconceptions of Mileage-Based User Fees1. Privacy: The Government will track where I drive.

Privacy has to be guaranteed. That is why pilot trials areneeded to evaluate different technologies and to developprivacy protocols. Many methods for mileage meteringwill be tested including some that do not use GPS typevehicle location technology. Identifying vehicles bylocation is one possible VMT technology but there areother methods that would be tested that simply measuremiles driven and are not location based.

2. Fairness: Rural drivers will have to pay more becausethey drive longer distances. Any alternative system hasto be fair. One goal for the trials would be to determinehow to calibrate the mileage-based user fee system so thatit would be fair to both rural and urban drivers. Ruraldrivers drive longer distances but often in less fuel-efficient vehicles. Urban drivers drive shorter distancesbut spend more time in traffic. Both already pay gas taxeson fuel consumed. The mileage-based user fee wouldreplace the fee paid for gas taxes with a fee for road use.

3. Double Taxation: This will just be a way for theGovernment to tax me twice. No, the MBUF wouldbe an alternative to the gas tax. The intent is shoreup the Highway Trust Fund and generate sufficientfinancial capability to meet the country’s transportationinfrastructure needs.

4. Anti-Fuel Effinciency: Mileage-based user fees will

Mileage-Based User Fees

punish drivers of fuel efficient vehicles and discourage adoption of hybrid & electric vehicles. Our current system is designed to charge road users for the cost of building and maintaining roads and bridges. It is not designed to encourage or discourage fuel efficiency. Electric vehicles receive the same benefit from roads and bridges as conventionally fueled vehicles. To be fair, they should also contribute to the cost of use. Studies can look at impact on the roads being used caused by different size and weighted vehicles and calibrate fees accordingly.

5. Interoperability: Every state and locality will have adifferent system and the new system will be inefficientand dysfunctional. The private sector and the academiccommunity would be involved in the data collection,technology development and trial assessment. Funds fromthe federal government could help explore technologyrequirements like interoperability and standards.

For more information on the Mileage Based User Fee Alliance, visit their website at http://mbufa.org. The Alliance is made up of the following organizations:

AAAAECOMAssociated General ContractorsAzugaCal TransCambridge SystematicsCDM SmithCH2MColorado Contractors AssociationCubic Transportation D’Artagnan ConsultingDelaware DOTHNTBHumphrey School of Public AffairsUniversity of MinnesotaI-95 Corridor CoalitionIndiana, Illinois, Iowa

Foundation for Fair ContractingInternational Bridge, Tunnel, and Turnpike AssociationInternational TelematicsMinnesota DOTNevada DOTNew York City DOTNorth Carolina DOTNossaman, LLPOregon DOTParsons BrinckerhoffReason Foundationsanef its technologiesSouthern California Association of GovernmentsTransCoreVerdeva, Inc.Verizon TelematicsWashington DOTXerox

6 p NH Construction Connections p March 14, 2016

• Workers’ Compensation Law – obtained frominsurance carrier

• Protective Legislation Law• Criteria to Establish and Employee or Independent

Contractor• New Hampshire Minimum Wage Law• Whistleblower’s Protection Act• Workers Right to Know• Equal Pay Law

Most Cited OSHA Standards in 2015The Occupational Safety and Health Administration (OSHA) regulates the safe working environment for employees. Construction is one of the most dangerous industries, with many safety threats on the jobsite. In 2015, OSHA most frequently cited the ten standards below.

1. Fall Protection – Employers must set up theworkplace to prevent employees from falling off ofoverhead platforms, elevated work stations, or into holesin the floors and walls.2. Hazard Communication – To ensure chemicalsafety in the workplace, information about the identitiesand hazards must be available and understandable toworkers.3. Scaffolding, general requirements – Scaffoldingaccidents occur most frequently when a planking orsupport gives way, the employee slips, or the employee isstruck by a falling object.4. Respiratory Protection – Respirators protect workersagainst harmful airborne matter such as dust, fog, smoke,mist, gases, vapors, and sprays.5. Control of Hazardous Energy (Lockout/tagout) –Machines powered by energy sources such as electrical,mechanical, hydraulic, pneumatic, etc., can unexpectedlystart up during maintenance, causing injury to the worker.Proper lockout/tagout procedures prevent workers frombeing injured by stored energy.6. Powered Industrial Trucks – Forklifts or lift truckshave the potential to cause serious injury if improperlycontrolled. Ensuring that the operator of such vehicles isproperly trained can help reduce the risk of injury.7. Ladders – Ladders are considered part of fallprotection hazards. In the construction industry, fallprotection must be provided at six feet. If a six-foot ladderis used, an employee must provide appropriate fallprotection.8. Electrical Wiring Methods – Electrocution continuesto be a major safety concern for OSHA. The organizationstates that many workers in the construction industry areunaware of the electrical hazards in the workplace.9. Machine Guarding – OSHA requires that anymachine part, function, or process that has the potential to

cause injury be safeguarded. If the operation of a machine injures the operator (or others in the vicinity), the hazards must be eliminated or controlled. 10. Electrical, general requirements – To avoidpotential injury from electrical systems design, the use ofinsulation, guarding, grounding, and electrical protectivedevices can be used.

OSHA provides fact sheets and guides on how to avoid these violations on their website. Visit https://www.osha.gov for more information.

Get Ready for the Season with Online Training AGC of NH’s Virtual University is the perfect way to get your employees’ training up-to-date in a quick and convenient manner. Through a partnership with ClickSafety, members have access to over 300 different courses that cover almost all aspects of safety in construction. ClickSafety is one of the select few safety training companies that are authorized to provide online OSHA Outreach Training. The course offerings for OSHA Outreach include:

• OSHA 10-Hour Construction• OSHA 30-Hour Construction• OSHA 10-Hour General Industry• OSHA 30-Hour General Industry• OSHA 10-Hour Road Construction

Why use online training through the Virtual University? Companies that have used the ClickSafety program have experienced measurable benefits, including:

• Increased accountability of employees• Reduction of accidents and injuries• Consistent communication of safety expectations and

requirements• Significantly fewer business disruptions• Low-cost solution to safety training

To see a full course listing, visit AGC of NH’s website at www. agcnh.org. Click on the Virtual University button to learn more.

... Continued from page 4

Contractors must follow their requirements for jobsite posters. A full downloadable list of required state posters can be found here: https://www.nh.gov/labor/forms/mandatory-posters. htm.

Mandatory posters include:

The 2015 version of the International Energy Conservation Code is soon to be upon you.

Modern building codes are most often adopted by local government legislative bodies and as such vary from place to place. The IECC is in use or adopted in 47 states, the District of Columbia, the U.S. Virgin Islands, New York City and Puerto Rico.

By way of background, the International Building Code, as published by the International Code Council establishes “the minimum requirements to safeguard the public health, safety and general welfare …” The ICC also developed the IECC, encouraging energy conservation through efficiency in design, mechanical systems, and lighting systems. An energy conservation code is a major expansion from the life safety mission of building codes. Many suggest that the IECC has had much more impact on high performance building than has LEED.

The IECC 2009 is widely adopted across this country because a commitment to adopt it was a precondition to states receiving stimulus funds under the American Recovery and Reinvestment Act of 2009 from the federal government. There is an IECC 2012, but its adoption has been slow because its energy efficient performance is about 30% higher than the 2009 code, which is a significant increase. More than half of the country is currently under the 2009 IECC. Now the IECC 2015, with 77 changes from the 2012 version, has been published and is ready to be adopted. It is published in a single volume with ASHRAE Standard 90.1-2013 Energy Standard for Buildings Except Low-Rise Residential Building.

On January 1, 2015, the State of Maryland became the first state to adopt the 2015 IECC with local government adoption and enforcement required throughout the state by July 1, 2015. In terms of overall energy impact, the 2015 IECC is only negligibly different than the 2012 version. It is, however, accepting that there is no one homogenous building type, a slightly more than 1% better energy impact for commercial building than the 2012 IECC.

Many are being heard to argue that the time, inconvenience and expense of implementing a new code with only a slightly more than 1% better energy impact is unwise. A U.S. Department of Energy technical analysis of the 2015 version determined only about 6 of the 77 total changes actually increase energy savings. The vast majority, that is, over 60 of the changes require new materials and methods but are energy neutral and 3 arguable have a detrimental effect on

March 14, 2016 p NH Construction Connections p 7

An Arm and a Leg and the 2015 Internat ional Energy Conservat ion Code

By Stuart Kaplow on May 17, 2015 for greenbuildinglawupdate.com

energy savings.

But because the DOE has determined the revised code improves energy efficiency in residential buildings, even ever so modestly, states are statutorily required to certify that they have reviewed their residential building code regarding efficiency, and made a determination as to whether it is appropriate for such state to revise their code to meet or exceed the provisions of the successor code. This only applies to residential codes.

There is no doubt that, in large measure because of adoptions of energy codes, energy efficiency has increased significantly. With a goal of reducing energy use, energy codes are of great import to green building. Critics have, however, effectively questioned the efficacy of using a mandatory code, that is little known and rarely debated burdening real estate with addressing a single societal issue (without balancing matters of resilience, public safety, etc.), and pointing out that this all looks a lot like establishing a national energy standard for every building.

Whatever your perspective on legislatively mandated continued reduction in building energy use, be aware that the 2015 version of the IECC, including the required changes in building systems and products and the associated increases in first costs, may soon be upon you.

This article can be found in full here: http://www. greenbuildinglawupdate.com/2015/05/articles/codes-and-regulations/an-arm-and-a-leg-and-the-2015-international-energy-conservation-code/

AGC of NH and NHDOTConstruction Overview Seminar

March 24th 7:30 am - 12 pmat the Marriott Grappone Conference Center in Concord

Associated General Contractors of NH and The NH Department of Transportation have partnered to bring you this half day seminar. This is a great way for Project Managers, Superintendents, Foreman

and other construction personnel to catch up on new regulations and requirements.

The agenda includes:Welcome by NHDOT Commissioner Victoria Sheehan, 10-Year

Highway Plan Overview, 5-Year Federal Funding Program, Advertising Schedule Outlook for 2016 & 2017, Electronic Bidding

Software Update, Overweight Permitting Software Update, Summary of Police Training and Recertification, Major Specification

Changes, FHWA Update, and New Rules for Contaminated Soils.

AGC of NH Member Price$30 per individual

Non-Member Price$55 per individual

Breakfast & Break Included

Mail to: 48 Grandview Rd., Bow, NH 03304, Email: blaflamme@agcnh.org, or fax to: (603) 226-2859

A special thanks to our sponsors:

Registration Form

Company: ________________________________________________________

Name(s): _________________________________________________________

Tel: ______________________________________________________________

Total: $ ________ Check Visa Mastercard Discover Am. Exp.

Credit Card #: ____________________________________________________

Exp. Date: _______________________ Billing Zip: ____________________

Name on Card: ___________________________________________________

A s s o c i a t e d G e n e r a l C o n t r a c t o r s o f N e w H a m p s h i r e

Flag Training Seminar March 30, 2016

8:30 am - 12:30 pm Location: AGC of NH Office in Bow, NH

Please return registration form to: email: blaflamme@agcnh.org fax: (603) 226-3859 mail: AGC of NH, 48 Grandview Rd., Bow, NH 03304

The AGC of NH “Train the Trainer” Flag Training Course, instructed by Gary Abbott of AGC of NH, will cover NH DOT regulations on flag person training, proper use of equipment, placement of flaggers on the

site, etc.

Designated trainers are required to complete a flagging course at least every FOUR years!

Course materials include a USB flash drive of helpful forms, a video clip titled “Professional Flagging”, a template you may use as a guideline when preparing your own flag training completion cards, and other

useful materials to help you conduct your internal trainings.

All participants who complete the course and pass a short exam will receive a pocket card signifying course completion.

AGC of NH Member Price: $75 per personNon-Member Price: $150 per person (pre-paid only)

Registration FormCancellations must be received 72 hours in advance to be eligible for a refund.

Company:

Name:

Address:

City: State: Zip:

Phone (where to reach you in case of inclement weather cancellation):

Amount Due: $

Enclosed Invoice - members only Visa

Mastercard Discover Am. Express

Card #:

Exp. Date: Billing Zip:

Name on Card:

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March 14, 2016 p NH Construction Connections p 11

Associat ion News

Last Call: Sign Up for the Construction Overview SeminarRegistration is still open for the AGC of NH and New Hampshire Department of Transportation (DOT) 2016 Construction Overview Seminar. The event is being held on March 24th at the Concord Marriott Grappone Conference Center from 7:30am to 12pm. The seminar will feature a breakfast, various presentations from the NHDOT, and a Q&A session. Attendees will also have the opportunity to meet Commissioner Victoria Sheehan. If you are interested in attending, please submit the form on page 8.

Start Getting Ready for the 2017 Build NH AwardsWhile the next Build NH Awards isn’t happening until 2017, the awards will go to projects happening right now. Start preparing today by taking photos of your job site and gathering the information for your submission. These prestigious awards highlight innovation, project management, and current construction trends in New Hampshire’s commercial construction industry. The best entries include a detailed description of the project and pictures covering

different phases of the project. We look forward to seeing your submissions!

March Issue of Safer Roads Now AvailableAGC of NH has just released the latest issue of its publication, A Safer Road to Tomorrow. The seasonal newsletter is sent to various state legislators and officials as a way to increase awareness for issues specific to highway funding and construction.

Featured stories include:• Road Usage Fee Goesto Interim Study• Federal Five-Year Highway Bill Signed by President• Road Toll for Electric Vehicles Passes House• 2017-2027 Ten Year Transportation Plan

The March 2016 issue can be found online at http://www. saferoadsnh.com.

AGC of NH Political Luncheon Series

Friday, March 18th | 12:00 - 1:00 PM at the AGC Office in Bow

U.S. Senator Kelly AyotteThe Associated General Contractors of NH will be hosting the 2016 Political Luncheon Series for Association members. The

series will feature candidates from the upcoming state elections. Five installments will be held between February and October. The second installment will feature U.S. Senator Kelly Ayotte.

Registration Form

Company: __________________________________

Name: _____________________________________

Tel: ________________________________________

Registration required for attendance, as space is limited.

Lunch included!

Mail to: AGC of NH, 48 Grandview Rd., Bow, NH 03304 Email: blaflamme@agcnh.org

Fax: (603) 226-3859

Free to AGC of NH Members!

Sponsored by:

A SAFER ROAD TO TOMORROWMarch 2016

Safer Road Partners

Associated General Contractors of New Hampshire

The Associated General Contractors is a non-profit trade organization of general contractors, subcontractors,

and industry professionals dedicated to improving industry standards.

NH Good Roads AssociationNH Good Roads Association is a non-profit trade organization established to encourage the development of a safe, efficient and environmentally

sound highway transportation system.

Safety and Health Council of Northern New England

The Council’s mission is to educate and promote safety & health policies,

practices and procedures that prevent and mitigate human economic losses arising from unintended causes.

NH Association of Chiefs of PoliceThe Association secures a close

relationship among commanding officers all over the state, to

encourage a cooperative relationship among all police officials.

NH Lodging & Restaurant Association

The Association is a non-partisan organization to promote, protect and educate the food service and lodging

industries and to ensure positive business growth for our members.

Business & Industry AssociationThe Association is NH’s leading business trade association. It

advocates for business interests with state and federal legislators and

regulators.

Road Usage Fee Goes to Interim StudyHouse Bill 1602, Representative Norm Major’s road usage fee, was unanimously voted to Interim Study by the Public Works & Highways Committee. The bill is meant to create a fair and level playing field for all New Hampshire motorists by ensuring owners of fuel efficient vehicles pay their fair share for using roads and bridges.

The proposed policy uses the Federal Department of Transportation average as a base, which is a 20 mpg vehicle traveling 13,500 miles a year. The owner of such a car pays about $150 a year in gas tax that goes to the state’s highway fund, while the owner of a more fuel efficient

vehicle pays little to nothing in gas taxes. The road usage fee would bring the total for fuel efficient cars to $150 as well.

For example, if a vehicle is rated at 40 miles per gallon with the owner paying $75 in gas taxes, the road usage fee for that vehicle would be $75, bringing the total to $150. Motorcycles, mopeds, and vehicles built before 1984 would be exempt from the fee. Vehicles rated 20 mpg or less would not pay the usage fee. Town or city clerks would collect the fee based on the VIN number when the owner registers the vehicle and pays the license plate fees.

According to State Representative Bill Ohm, “The goal is to make every car pay the same amount to use the roads.” Davis Juvet, Executive Vice President of the Business & Industry Association stated, “It’s really not fair that a certain segment of road users are paying through the form of a gas tax for road and bridge maintenance while others are paying less or in some cases nothing.”

Electric cars, such as the Tesla, have access to charging stations on certain New Hampshire highways as well as other locations and pay nothing in gas taxes. However, Teslas weigh significantly more than the average car. The 2015 S P85D weighs 4,647 lbs, with the battery alone weighing 1200 lbs.

Opponents of the road usage fee, including the NH chapter of Americans for Prosperity, believe the bill is discriminatory and penalizes drivers of fuel-efficient cars. Opponents also argue that the fairest system would be a fee for miles traveled, but supporters say that would involve putting a GPS in the car of every NH motorist, which would be both expensive and intrusive. The House reported that, while many committee members feel this concept should be adopted, the proposed bill evolved into what some consider a way to raise extra revenue for the Department of Transportation. The proposed bill would not only level the playing field for alternative fuel vehicles, but would also raise fees on so-called high mileage vehicles.

Associated General Contractors of NH48 Grandview RoadBow, New Hampshire 03304

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