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Proposed Settlement Agreement, Application of Labor Standards Provision in the Clean Water Act State Revolving Fund program

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

 [Federal Register: June 22, 2000 (Volume 65, Number 121)]
[Notices]
[Page 38828-38830]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jn00-71]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6720-5]


Proposed Settlement Agreement, Application of Labor Standards
Provision in the Clean Water Act State Revolving Fund program

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed settlement; request for public comment and
notice of public meeting.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
seeking comment on a proposed settlement agreement between the Agency
and the Building and Construction Trades Department, AFL/CIO (Building
Trades) which would resolve a matter now pending before the Department
of Labor's Wage and Hour Division Administrator. Under the proposed
settlement agreement, EPA would prospectively apply the Davis-Bacon
Act's prevailing wage rate requirements in the Clean Water State
Revolving Fund (CWSRF) program established in title VI of the Federal
Water Pollution Control Act, as amended (more commonly known as the
Clean Water Act (CWA)), 33 U.S.C. 1381--1387, in the same manner as
they applied before October 1, 1994.
    Title VI of the CWA authorizes EPA to award grants to capitalize
state revolving funds from which states, in turn, award loans and other
types of assistance for the construction of publicly owned treatment
works and other water quality projects. Appropriations for the CWSRF
program were authorized only through fiscal year 1994, but Congress has
continued to

[[Page 38829]]

appropriate funds for the program each year since.
    CWA section 602(b)(6) required publicly owned treatment works
funded with CWSRF assistance ``directly made available by
[capitalization grants]'' that were ``constructed in whole or in part
before fiscal year 1995'' (emphasis added) to comply with the
requirements of a number of other CWA provisions. Among the provisions
was CWA section 513, which applies Davis-Bacon Act requirements to
treatment works for which grants are made under the CWA.
    EPA interpreted the language of CWA section 602(b)(6) as limiting
the application of the Davis-Bacon Act and other requirements to CWSRF-
funded treatment works projects ``constructed in whole or in part
before fiscal year 1995'', and, in an August 8, 1995, memorandum,
announced that these requirements would not apply to CWSRF-assisted
projects that begin construction on or after October 1, 1994 (the
beginning of Fiscal Year 1995). Two years later, the Building and
Construction Trades Department (``Building Trades''), AFL-CIO, asked
the Department of Labor's Wage and Hour Division (``DOL'') to rule that
the requirements of the Davis-Bacon Act continue to apply to treatment
works projects funded with CWSRF loans under CWA title VI. The Building
Trades argued that the Davis-Bacon Act requirement applied to CWSRF-
funded projects as long as Congress appropriated funds for the program.
EPA responded in opposition to the Building Trades request for ruling.
    EPA has closely considered the relationship of CWA section 513 and
CWA section 602(b)(6) and the arguments of the Building Trades in its
request for ruling. While the Agency's position to date rests on a
reasonable legal interpretation, EPA is now persuaded of the
appropriateness of the view that CWA section 513 imposes a continuing,
independent obligation on the Agency to ensure that Davis-Bacon Act
requirements apply to any grants made under the CWA for treatment
works, including capitalization grants made under title VI of the CWA.
The language of CWA section 602(b)(6) does not relieve the Agency of
this obligation. Furthermore, as a matter of policy, the Agency has
determined that prevailing wage rate requirements applicable to
federally-assisted construction projects should continue to apply to
federally-assisted treatment works construction in the CWSRF program.
    Consequently, EPA and the Building Trades are proposing to enter
into the settlement agreement published with this notice. Under the
agreement, EPA would include a condition in all capitalization grant
agreements entered into between the Agency and the states on or after
January 1, 2001, requiring the states to ensure that the requirements
of section 513 of the CWA will be applied to publicly owned treatment
works receiving CWSRF assistance in the same manner as they were
applied before October 1, 1994. In exchange for EPA's commitment,
Building Trades would agree not to pursue any further action on this
matter before DOL or any other Federal administrative agency, or in
litigation.
    For a period of forty-five (45) days following the date of
publication of this notice, the Agency will receive written comments
relating to the proposed settlement agreement from any persons. A
public meeting to discuss this proposed settlement agreement will also
be held on Thursday, July 13, 2000, from 2 to 4 PM, at the Washington
Plaza Hotel, 10 Thomas Circle, Washington, DC EPA may withdraw from the
proposed settlement agreement, or withhold its agreement, if these
comments or consultations taking place with state and local government
representatives, disclose considerations that indicate that entering
into the settlement agreement would be inappropriate, improper or
inconsistent with the requirements of the CWA.
    Written comments should be sent to Geoff Cooper, Finance and
Operations Law Office, Office of General Counsel (2377A), U.S.
Environmental Protection Agency, 12th and Pennsylvania Avenue, NW.,
Washington, DC 20460 (or they may be e-mailed to
cooper.geoffrey@epamail.epa.gov.) Questions about the July 13, 2000,
public meeting should be addressed to Angela Cracchiolo, Office of
Wastewater Management, Office of Water (4204), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
(or they may be e-mailed to cracchiolo.angela@epamail.epa.gov.)

    Dated: June 14, 2000.
Gary S. Guzy,
General Counsel.

Proposed Settlement Agreement

    Whereas, title VI of the Federal Water Pollution Control Act, as
amended (more commonly known as the Clean Water Act (CWA)), 33 U.S.C.
1381--1387, authorizes the Environmental Protection Agency (EPA) to
make grants to states to capitalize Clean Water State Revolving Funds
(CWSRF), from which the states, in turn, make loans and other types of
assistance for the construction of publicly owned treatment works and
other water quality projects and activities;
    Whereas, section 602(b)(6) of the CWA, 33 U.S.C. 1382(b)(6),
requires states to ensure that publicly owned treatment works
``constructed in whole or in part before fiscal year 1995 with CWSRF
funds directly made available by'' capitalization grants comply with
sixteen provisions of the CWA, including section 513 of the CWA, 33
U.S.C. 1372, which applies Davis-Bacon Act requirements to treatment
works for which grants are made under the CWA;
    Whereas, EPA has not required states to ensure that publicly owned
treatment works that began construction on or after October 1, 1994,
with CWSRF assistance will comply with the requirements identified in
section 602(b)(6) of the CWA, including the requirements of the Davis-
Bacon Act;
    Whereas, the Building and Construction Trades Department, AFL-CIO,
(Building Trades), challenged this position and requested a ruling by
John R. Fraser, Acting Administrator of the Department of Labor's (DOL)
Wage and Hour Division, that the requirements of the Davis-Bacon Act
continued to apply to the construction of publicly owned treatment
works receiving CWSRF assistance as long as Congress appropriates funds
for grants under title VI of the CWA.
    Whereas, Congress has continued to appropriate funds for grants to
states for their CWSRF programs under the CWA;
    Whereas, EPA replied in opposition to the Building Trades request
for ruling;
    Whereas, EPA published this settlement agreement in the Federal
Register along with a request for the public to comment on whether EPA
should again apply section 513 of the CWA to treatment works projects
assisted with CWSRF funds directly made available by capitalization
grants, and consulted with state and local government officials on the
terms of this agreement;
    Whereas, EPA has carefully considered the comments received on the
Federal Register Notice and the comments provided by state and local
governments during the consultation process;
    And Whereas, EPA and the Building Trades have determined that it is
in the public interest to resolve this matter expeditiously;
    It is therefore agreed that,
    1. EPA will issue a memorandum to its Regional Water Division
Directors directing them to include a condition in all capitalization
grant agreements entered into between EPA and the states under title VI
of the CWA, on or after January 1, 2001, requiring the states to

[[Page 38830]]

ensure that the requirements of section 513 of the CWA will be applied
to publicly owned treatment works receiving CWSRF assistance under
those agreements in the same manner as section 513 requirements were
applied before October 1, 1994.
    2. The grant condition will require states to ensure that the
requirements of section 513 of the CWA, and no other requirements
identified in section 602(b)(6) of the CWA, will apply only to
publicly-owned treatment works that are funded with funds ``directly
made available by'' grants under title VI of the CWA, as that phrase is
defined at 40 CFR 35.3105(g).
    3. The grant condition will be included in all capitalization grant
agreements entered into between EPA and the states under title VI of
the CWA on or after January 1, 2001;
    4. The Building Trades and EPA will submit this agreement to the
Administrator of the Wage and Hour Division, DOL, with a joint request
to dismiss the administrative proceeding on the Building Trades
Department's request for ruling.
    5. The Building Trades will not pursue any further action on the
matter hereby resolved in this settlement agreement, either before DOL
or any other Federal administrative agency, or in litigation.
    6. In the event that EPA does not accomplish one or more of the
items specified in Paragraphs 1, 2 and 3 above, the Building Trades
sole remedy will be to reinstitute its request for ruling before the
DOL.
    7. Nothing in the terms of this agreement shall be construed to
limit or modify the discretion accorded EPA by the CWA or by general
principles of administrative law.
    8. The undersigned representatives of each party certify that they
are fully authorized by the parties they represent to bind the
respective parties to the terms of this settlement agreement. This
settlement agreement will be deemed to be executed when it has been
signed by the representatives of the parties below.
    Agreed:

Gary S. Guzy,
General Counsel, United States Environmental Protection Agency, 1200
Pennsylvania Avenue, Washington, D.C. 20460.
Edward C. Sullivan,
President, Building and Construction Trades Department, AFL-CIO,
American Federation of Labor/Congress of Industrial Organizations, 1155
Fifteenth Street, N.W., 4th Floor, Washington, D.C. 20005-2707.
[FR Doc. 00-15719 Filed 6-21-00; 8:45 am]
BILLING CODE 6560-50-U

 
 

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