AGC's Environmental Observer - November 30, 2011 / Issue No. 10 (Print All Articles)

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AGC Delivers on Environmental Reform

AGC environmental victories include “wins” on issues such as: National Air Standards, EPA’s ‘Mud Rule,’ Fly Ash in Construction, Lead Paint ‘Clearance’ Testing, Off-road Diesel Emissions Rules and Funding for Diesel Retrofit. These efforts save member firms billions of dollars every year.

AGC works year-round to protect construction jobs and the environment, and has a long history of working closely with the U.S. Environmental Protection Agency (EPA) to improve environmental performance in a way that doesn’t undermine economic growth. AGC consistently brings contractors’ views to the forefront and helps craft solutions that protect the environment and help members.

Our goal is to protect the industry from costly, prescriptive and unnecessary regulations that would hurt the economy without benefitting the environment.

Over the past year, AGC has successfully pushed the administration to re-examine or delay promulgating a host of significant federal environmental rules with massive economic costs and dubious environmental benefits including:

  • National Air Standards
  • EPA’s ‘Mud Rule’
  • Fly Ash in Construction
  • Lead Paint ‘Clearance’ Testing
  • Off-road Diesel Emissions Rules
  • Funding for Diesel Retrofit.

In addition, AGC has secured millions in federal funding for contractors who voluntarily retrofit their off-road diesel equipment.

Click here to learn more about AGC’s latest environmental victories.

For more information, contact Leah Pilconis at or Melinda L. Tomaino at

EPA Briefs AGC on Plans to Revamp CWA Jurisdiction, Solicits Input

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are working on a proposed rule to revise the definition of “waters of the United States” that are subject to federal control and permit requirements under the Clean Water Act (CWA). AGC recently participated in an interagency meeting to discuss the potential small-business impact of EPA’s efforts to clarify this critical term which dictates when Clean Water Act Section 404 permits are required to perform construction work (i.e., dredge and fill activities) in streams, rivers, wetlands, lakes, and other waterbodies.

EPA and the Corps’ current rulemaking effort is intended to codify the federal government’s current approach for determining when marginal water and isolated wetlands are subject to federal regulations in the wake of two key Supreme Court rulings that have caused confusion over the CWA’s scope.  The agencies admit that there is much confusion over what key terms mean.  This is particularly frustrating for the regulated community – including the construction and development industries – because if the waters are not considered “waters of the U.S.,” no costly and time-consuming federal permits are required under the CWA.

AGC met with EPA, the Corps, and staff from the Office of Management and Budget (OMB) and the Small Business Administration (SBA) to learn more about the rulemaking proposal and to provide individual input for the EPA to consider as the rulemaking is further developed. EPA’s briefing of its initial efforts seems to indicate that it plans simply “codify” much – if not all – of a draft guidance proposed May 2 by the Corps and EPA, which described how the agencies would identify waters under the jurisdiction of the Clean Water Act in light of U.S. Supreme Court decisions on the issue.  The proposed guidance would expand federal jurisdiction of waters under the act. The Supreme Court issued divided opinions in 2006 on Clean Water Act protections for wetlands in Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006).

AGC and many other groups have asked EPA to propose a rule on the issue, but maintain that EPA should start over and not use the proposed guidance as a basis for a rule.  EPA has said it plans to propose a rule but has not indicated whether it plans to finalize or withdraw the guidance.  See  The projected date for publication of a proposed rule in the Federal Register is January 2012

Small-Business Meeting

AGC small-business member Trey Pebley (Vice President of McAllen Construction, McAllen, TX and Chairman of AGC’s Environmental Forum Steering Committee) was selected by EPA to represent commercial construction firms’ at the meeting.  Mr. Pebley stressed in both verbal and written remarks that clarification is needed to prevent permitting delays, inconsistent jurisdictional determinations, and unwarranted risk and liability for small businesses.  AGC of America staff also participated in the meeting – at EPA’s request – and submitted a separate set of comments pointing out specific instances wherein the Supreme Court has established important limitations on the Corps and EPA’s authority to regulate work in water and wetlands and identified certain principles that the Corps must consider in determining whether non-navigable waters have the requisite nexus with traditional navigable waters.   In addition, AGC and several other organization wrote to EPA asking for additional time to provide comments.  EPA responded with a two-week extension.

Taking advantage of the additional time to weigh in on the CWA jurisdiction rulemaking, AGC joined with several other small-business trade groups to submit additional comments.  The letter stresses that we are very concerned about EPA relying on the guidance as a basis for the new rule.  It would expand [federal] jurisdiction and lead to federal decisions encroaching on state, local, and private property rights.  AGC has recommended that EPA slow down and launch an advance notice of proposed rulemaking, rather than the proposed rule EPA is planning, and hold a more formal consultation to minimize the rule’s impact to small businesses.

Fundamental principles of due process and good government require the regulatory agencies to clearly and uniformly set forth the scope of federal jurisdiction.  The regulated public must be given fair notice as to what conduct is prohibited under the CWA.  As the “operators” of construction sites, both property owners and their construction contractors risk fines and penalties for any failure to obtain a necessary permit.  Without clear definitions to guide field staff, permitting decisions will continue to be arbitrary and inconsistent.  What is more, vague and ambiguous regulatory requirements lead to lengthy, costly, and often unnecessary permitting requirements for critical public infrastructure and private projects. 

EPA Draft CWA Jurisdiction Guidance

This spring, EPA and the Corps proposed new guidance and indicated rulemaking would follow.  See  The agencies received 300,000 comments.  AGC has opposed the proposed guidance, saying it would hinder the economy. 

The EPA guidance focuses most heavily on advancing a broad interpretation of Justice Kennedy’s “significant nexus” test as the basis for CWA jurisdiction. The proposed guidance would include most tributaries of traditionally navigable waters, and wetlands near those tributaries, as “waters of the U.S.,” because the guidance would aggregate the influence of “similarly situated” streams and wetlands within a watershed on downstream jurisdictional waters.  All observers and EPA agree that the new guidance will significantly expand CWA jurisdiction from the view followed by the Bush Administration.


Clean Water Act permits are required to discharge pollutants and dredged or fill material, into waters of the United States; such as streams, rivers, wetlands, lakes, and other waterbodies. If the waters are not considered “waters of the U.S.,” no federal permits are required under the CWA.  Recent court rulings and interpretations of water laws have sparked confusion and increased uncertainty regarding which waters are protected under the Clean Water Act, especially for some headwaters with ephemeral and intermittent flows, and some other waters such as prairie potholes and vernal pools. The EPA and the Army Corps of Engineers (Corps) are seeking to provide clarification as to what waters are considered jurisdictional and thus under the purview of the CWA.  The EPA and the Corps recently released a proposed guidance on determining jurisdiction of waters.  For more information, log on to

For more information, contact Leah Pilconis at

AGC Offers Education Series on How to Meet National Oil Spill Planning Deadline

If you have oil on your jobsite, or at your asphalt plant, be aware of the Nov. 10, 2011, deadline to comply with the U.S. Environmental Protection Agency’s (EPA) oil spill planning rule. The federal Spill Prevention Control and Countermeasure (SPCC) program applies to the owner and operator of any construction site that has the “capacity” to store more than 1,320 gallons of any type of oil product in above ground storage tanks/containers.

AGC recently published a three-part series intended to help AGC members determine if they need a federally-required oil spill plan – and, if they do, the series will help them develop one that meets EPA requirements.  Members of AGC’s Environmental Forum Steering Committee contributed to the series and shared best practices and tips that will benefit other construction professionals.

Part 1 of AGC’s series on SPCC compliance is intended to help AGC contractors determine if their construction sites need to comply with the federal SPCC rule.

Part 2 of AGC’s series on SPCC compliance discusses when and how construction site owners/operators may use EPA’s SPCC Plan Template – which offers more streamlined and relaxed requirements for certain low-risk sites.

Part 3 of AGC’s series on SPCC compliance is a case study on how an AGC member firm meets SPCC compliance requirements.

The main goal of the SPCC programis to prevent oil from entering surface waters or nearby shorelines of the United States. The rule applies in all 50 states and is administered and enforced by federal EPA in every state; however, states and localities also may have supplemental oil programs. Inspectors are looking for sheens on water, the ground, or pavement, oil storage containers without secondary containment or with improperly sized secondary containment, lack of alarm systems to notify personnel of spills, missing records and failure to train personnel. This rule also is in addition to any oil spill requirements required by your stormwater pollution prevention plan.  Also, many states and/or localities require registration and permitting of all above-ground storage tanks that contain oil – ON TOP OF federal SPCC requirements.

Additional information is on EPA’s website at

For more information, contact Leah Pilconis at or (703)837-5332.

Senators Introduce Amendment to Block Federal Land and Water Grab

Sens. John Barrasso (R-Wy.) and Dean Heller (R-Nev.) filed an amendment Nov. 10 to the Energy and Water Appropriations “Minibus” that would stop the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) from finalizing a complex rulemaking that would greatly expand the federal government’s permitting authority over state and private land and water resources.  AGC has fought several legislative and regulatory attempts in recent years to expand the reach of federal Clean Water Act “wetlands” permit coverage.

The Barrasso/Heller amendment will block EPA’s efforts to fast-track its proposed guidance document with minimal public involvement and without congressional oversight.  The guidance would make a complex process more complex and it will drastically expand the number of permits that will be required. It would expand the definition of “waters of the U.S.” to include ditches and other locations where water flows only during, and for a short duration after, rain and snow falls.  Never before in the history of the Clean Water Act has federal regulation defined these places as “waters of the U.S.” 

The implications for construction are significant, particularly given the four million miles of roads – and their ditches – in the U.S.  Under the draft guidance, presumably any and all construction work on these roads would require costly and time consuming permits by the federal government before work could begin. 

Moreover, expanding federal control over water would interfere with the ability of individual landowners to develop building or infrastructure projects, including housing, schools, hospitals, roads, highways, agriculture and energy facilities.

The Senate stopped debate on the Energy and Water Appropriations bill prior to Thanksgiving.  There are currently no plans to bring it back up. 

For more information on EPA and the Corp’s effort to circumvent Congress and fast-track regulation, click here.

For more information, please contact Karen Lapsevic at 202-547-4733 or

AGC Responds to EPA on Consideration of Beneficial Use Data in Fly Ash Disposal Rule

On November 14, AGC submitted a comment letter in response to the U.S. Environmental Protection Agency’s (EPA) request for comment on specific information the agency collected in conjunction with its 2010 proposed rule to regulate the disposal of coal combustion residuals (CCR), such as fly ash, as either hazardous or non-hazardous waste.  During this comment period, the public could only respond to specific EPA questions related to limited information identified in the notice. 

AGC reviewed the studies and other information on the beneficial use of CCRs in construction applications and—in response to EPA’s specific query—determined that the agency should consider that information in its development of a final rule.  The studies and/or reports that EPA included for public review demonstrate the environmental benefits of reusing CCRs in construction applications.  Specifically, the studies reflect favorably on the use of fly ash in concrete, bricks and pavements—from both an environmental and human health perspective. 

AGC urged EPA to weigh the potential impacts of its regulatory options on the beneficial use of these materials and take into consideration the real environmental benefits of reusing these materials and the lack of negative reports (i.e., alleged or proven damage cases) associated with the beneficial use of CCRs in construction. 

In its November 14, 2011, comment letter, AGC included brief summaries of the findings and key points associated with the beneficial use studies and other relevant information that EPA indentified for public review.

AGC recently reported on U.S. Congress’ consideration of AGC-supported legislation that would establish a non-hazardous waste designation for CCRs and disposal program—which would safeguard the beneficial use of fly ash and guarantee safe disposal of unused CCRs.  Last year, AGC submitted comments on the agency’s proposed rule: Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule; 75 Federal Register 35128-35264 (June 21, 2010).  The proposed rule and additional information are on EPA’s website.

For more information, contact Melinda Tomaino at or (703) 837-5415.

AGC and AIA Issue Executive Summary of Sustainability and Risk Summit

AGC of America and the American Institute of Architects (AIA) have just released an executive summary of the industry summit on sustainability and risk the organizations jointly held earlier this year.  Initiated from a discussion by the AIA-AGC Joint Committee, the summit brought together representatives from various industry stakeholder groups to explore the rapidly shifting legal landscape in the building industry.  Key themes for the day were collaboration, education, practice transformation, accountability and metrics.  The executive summary is available here.

As previously reported, the April 25, 2011 summit was organized around presentations to provide an overview of sustainable building trends, green building costs and litigation; as well as panel discussions to ascertain the major questions and concerns of professional liability insurers and sureties and the future impacts of green codes, standards and rating systems on the building industries.  A list of presenters and panel participants can be found in the executive summary

Some of the key points raised by the presenters and participants include—

  • As the green building market continues to grow and become part of mainstream practice, three main categories of legal cases are starting to emerge: materials and techniques, regulatory compliance and those related to certification under rating systems.  Many of these disputes are being resolved out of court; therefore it is difficult to gauge the full extent of these cases.
  • Additional risks include: Ever evolving technology that introduces new, untested materials and methods.  Tying a projected or anticipated level of building or systems performance to design (and construction) without understanding or accounting for the impacts that operations and maintenance and tenant behavior have on the building’s ultimate performance.  The question remains to be answered whether industry is ready for outcome-based codes.  “Is the science really tested enough to prescribe outcomes?”
  • Sureties are beginning to understand green requirements and are addressing associated risks in a manner consistent with how surety bonds have been typically underwritten.  The surety should contemplate: “What are the additional risks, who is responsible for those additional risks and how are those risks being addressed?”
  • New model and “home-grown” green codes will change the future landscape of green and introduce new challenges.  Of pressing concern as codes are adopted and enforced is the education of code officials.  In addition, whereas many design, engineering and construction professionals are familiar with the voluntary green building rating systems, two challenges will likely surface as green codes become standard.  First, implementation and adoption of codes likely will be sporadic and variable across the country; therefore, firms that work in multiple areas will need to learn the differing “versions” of the codes as adopted.  Secondly, mandatory green requirements will impact a broader segment of building professionals that were not early adopters of green or part of the early majority. 

Additional issues discussed related to changes to the standard of care, compensation, owner education and the impact of executive orders and federal mandates.  The executive summary is available here.

For more information on green construction, contact Melinda Tomaino at (703) 837-5415 or

2012 AGC’s Contractors Environmental Conference; Call for Presentations


WHEN:            June 7, 2012 thru June 8, 2012

WHERE:         Hyatt Regency Crystal City, Arlington, Virginia

AGC is looking for presenters to speak at the 2012 AGC’s Contractors Environmental Conference: Compliant. Competitive. Cost-Effective. AGC is holding the conference on June 7-8, 2012 at the Hyatt Regency Crystal City in Arlington, Virginia, right outside of Washington, D.C. The deadline for submitting a proposal is December 19, 2011.

Recognizing today’s tough and competitive economic environment, this conference is geared towards helping contractors get their return on investment in environmental compliance and market opportunities. There will be opportunities for attendees to learn from the experts and for peer-to-peer learning.

Share your experience and know-how. Here are a few of the topics we want to cover during the conference:

  • Protecting your profit in a tough market
  • Gaining efficiencies through multiple roles
  • Solutions for maintaining compliance in a multi-state environment
  • Green requirements that impact federal contractors
  • Is low impact development an opportunity for contractors?
  • Developing an environmental policy statement and program

Please read the Call for Presentations for more session topics. Fill out the Proposal Form if you are interested in presenting. Submissions are due December 19, 2011.

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