AGC's Environmental Observer - December 3, 2014 / Issue No. 10-14 (Print All Articles)

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EPA Proposes Tighter Ozone Air Quality Standards

After years of delay, the U.S. Environmental Protection Agency (EPA) announced on Nov. 26 that it is proposing to strengthen the federal ozone air quality standards to within a range of 65 to 70 parts per billion (ppb), while taking comment on a level as low as 60 ppb. The current ozone standard, set in 2008, is at 75 ppb.

The proposal would greatly increase the number of counties that face “nonattainment” — thereby triggering the formation of state implementation plans (SIPs) to reduce ozone emissions. EPA maps show that 358 counties would violate a 70 ppb standard, based on 2011-2013 monitoring data. An additional 200 counties would violate a 65 ppb standard, raising the total to 558 counties. (To see an EPA map of the areas/counties out of compliance with the current 2008 ozone standard, click here.)

Industry groups have billed the new ozone proposal the most expensive regulation ever; the National Association of Manufacturers has put the costs at $270 billion a year. However, by law, EPA must set the air quality standard based on what the best science says is safe to breathe, and not on how much it will cost to get there. (The law provides for cost considerations in other areas of implementing pollution rules.) Still, EPA said the economic benefits would outweigh the costs by a wide margin.

EPA Administrator Gina McCarthy said the agency based its 626-page proposal on an “exhaustive, open and transparent” review of the latest science on the public health impacts of ozone pollution. Both EPA’s science advisers and its technical staff earlier this year recommended that EPA set a new standard in the range of 60 to 70 ppb based on recent data about the public health impacts of ozone. The agency was set in 2011 to tighten the standard to that range, but the White House pulled the proposal before it was finalized.

Industry Impacts

Construction companies will feel the effects of tighter ozone limits, mainly via restrictions on equipment emissions in areas with poor air quality (direct impact), as well as additional controls on industrial facilities and planning requirements for transportation-related sources (indirect impact). Notably, nonattainment counties that are out of compliance with CAA ozone standards could have federal highway funds withheld.

EPA also proposed to set the secondary ozone standard, a limit that’s meant to protect plants and other environmental attributes, at the same level.

EPA will seek public comment on the proposal for 90 days following publication in the Federal Register, and the agency plans to hold three public hearings. EPA will issue final ozone standards by Oct. 1, 2015.

Ground-level ozone pollution is formed when nitrogen oxides emitted by a host of industrial and mobile sources react with volatile organic compounds in the presence of sunlight.

To view the proposal, visit EPA’s website at http://www.epa.gov/glo/.

For AGC’s latest Federal Air Quality Standards Update, click here.


Ditches, Stormwater BMPs and Potholes Are Not Waters of the U.S.

AGC Urges Federal Agencies to Withdraw Proposed Rule

AGC of America has presented a powerful case for why the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) should withdraw their proposal to redefine “waters of the United States,” concluding that it is simply too flawed to repair. AGC filed a comprehensive 21-page letter on Nov. 13 that identifies practical problems with the proposal for the construction industry, based on input from AGC’s members.

AGC also submitted nearly 200 pages of additional comments through partnership work with the U.S. Chamber of Commerce, the Waters Advocacy Coalition and several other nationally-based associations. Those supplemental comment letters enhanced the construction industry’s advocacy and outreach efforts by coordinating AGC’s message with key stakeholders in the real estate, farming, home building, mining, manufacturing and many other business sectors. On the whole, AGC provided an exhaustive analysis of the legal, scientific, economic and procedural deficiencies associated with the WOTUS rulemaking – including how the proposal would assert federal control over waters that are currently under the sole jurisdiction of the states, including roadside ditches, stormwater control basins and ponds, isolated waters and other wet features. Under the proposal, more projects will have to comply with federal permitting and other environmental requirements, increasing the time and cost of performing construction services.

During the course of the nearly seven-month comment period, AGC and its chapters and members had dozens of meeting with the federal agency staff writing the rule, senior administration officials, and key members of U.S. Congress. We signed various letters and lobbied extensively on the Capitol Hill to bring common-sense to the rulemaking process, and AGC encouraged the construction community to reach out to the federal regulatory agencies and their representative lawmakers using AGC’s Regulatory Action Center. More than 100 members used AGC’s RAC to get involved and make industry’s voice heard on this important issue.

The agencies’ proposal expansively defines waters – claiming traditionally navigable waters, interstate/territorial waters, tributaries (including ditches), impoundments, adjacent waters (including waters in the floodplain or riparian areas), and “other waters” all as federally jurisdictional. The new “waters of the U.S.” definition would apply not just to the Section 404 program (that requires dredge-and-fill discharge permits for any work in federal waters), but also to other Clean Water Act programs that incorporate the term “waters of the U.S.,” most notably the Section 402 National Pollution Discharge Elimination System (NPDES) program (that requires Construction General Permits for stormwater runoff to federal waters), and the Section 311 Oil Spill Prevention Control and Countermeasures Program (that requires spill plans if there’s a potential for a release to federal waters – plus spill response and reporting).

The above-referenced requirements are expensive, cumbersome, and time-consuming to meet, and leave the construction community vulnerable to penalties and citizen suits. What is more, a lot of land might not be buildable at all. AGC is also extremely concerned with the process used to draft the proposal. The economic analysis conducted by EPA seriously underestimates impacted acreage and completely ignores impacts to non-404 programs. EPA also chose to not wait for a final peer review of their Connectivity Report, touted as the basis of the proposed rule, by the EPA’s own Science Advisory Board. Recognizing that state and local governments are managing water resources not under federal control, it is unclear why the agencies rushed through these important procedural steps designed to ensure that construction companies are protected. AGC noted in its letter that the agencies are not under a deadline to promulgate this rule so there’s ample time to start over and write a rule that is legally defensible.

For more information, please contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org.


Round Two: EPA Seeks Additional Feedback on Proposed NPDES Electronic Reporting Rule

Earlier this week, the U.S. Environmental Protection Agency (EPA) announced a request for further comment on a proposed regulatory program that would make every construction company’s stormwater permit records, inspection results and compliance history accessible to the public. As previously reported, the proposed National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule would require all construction site operators covered by an NPDES permit to submit a variety of permit-related information electronically instead of using paper reports. (See AGC articles here and here for background information.)

In its prior comments (dated December 12, 2013) and subsequent meetings with EPA, AGC expressed concern about the accuracy of data that would appear in EPA’s publicly-available database(s), the likelihood that such data will be misinterpreted or misconstrued, and the potential disclosure of confidential business information. The proposed e-reporting rule would make each company’s site-specific information, such as inspection and enforcement history, pollutant monitoring results, and other data required by permits accessible to the public through EPA’s website.

Over the next few weeks, AGC will carefully review the new information EPA has issued for further comment and further report to members. Comments are due on or before January 30, 2015. To review the proposed rule or to comment, click here for instructions.

In this second round of comments, EPA will consider comments on any aspect of the proposed rule; however, the agency has requested additional comment on specific issues raised previously by commenters. Specifically, EPA would like feedback on the following:

  • Initial recipient status;
  • The use of the State Readiness Criteria and the possibility of EPA requiring the electronic submission of NPDES program data to EPA when authorized states, tribes, and territories have not successfully implemented electronic reporting;
  • Implementation plan schedule;
  • Copy of record; and
  • Modifications of state NPDES regulations and statutes.

(If you previously submitted comments during the last public comment period, they are still on the record in the regulatory docket; therefore, you do not need to resubmit those comments.)

If you need more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.


EPA Adds Up YOUR Costs To Meet New Lead-Paint Rules for Public, Commercial Buildings

AGC Needs Your Help Confirming Whether the Cost Estimates Are Correct

The U.S. Environmental Protection Agency (EPA) is exploring whether to expand its Lead Renovation, Repair and Painting Program (LRRP) rule to cover construction work on existing public and private-sector commercial (P&C) buildings. The EPA has estimated how much it would cost YOU to meet its new lead-paint rules under consideration. However, AGC needs your thoughts on these EPA estimates to ensure they reflect real-world impacts of a potentially huge expansion of EPA’s current LRRP requirements.

EPA’s anticipated action would add lead-related certifications, training, work practice, recordkeeping and other requirements and costs to much of the construction work inside/outside existing P&C buildings, including restaurants, hotels, hospitals, churches and office buildings to name a few. (For a detailed list of the types of buildings that could be regulated in the future, click here.)

Three Areas Where We Need Your Feedback

Please review EPA’s estimates of the time, tasks and costs burdens to the regulated community that would result from an expansion of the current LRRP rule to include P&C buildings. Please let AGC (pilconisl@agc.org) know by Dec. 7 whether these estimates are reasonably accurate—

  • Renovator Training and Certification Costs – EPA has estimated renovator training and certification costs, which range from $70.00 (refresher training) to $455.39 (classroom initial 8-hour course) per student, based on the anticipated availability of online training programs and/or travel to an in-seat course held within a 50-mile radius without hotel accommodations. EPA is assuming that on-the-job training of the workforce, by the certified renovator, would take either 10 or 30 minutes depending on the format, and cost $5.00 to $15.00 per student. Cost estimates include “training time burden” in addition to tuition and expenses. (For details on EPA’s training cost estimates and assumptions, click here.)
  • Work Practice Requirements and Costs – EPA has pulled together a listing of work practices that may be required under an LRRP rule for P&C buildings, such as interior containment and cleaning. EPA has also estimated the costs associated with those practices (testing fees, shoe covers, wipes, polyethylene sheeting, etc.). The estimated costs range from $0.01 for an electrostatic cloth sweeper (e.g., Swiffer) per 1,800 ft2 job to $613.80 in wet wipes (including labor) for the same square footage. (Click here to see EPA’s list of potential work practice requirements for P&C buildings. Click here to review EPA’s estimated costs associated with these work practice requirements.)
  • Recordkeeping Requirements and Costs – EPA has estimated a company’s recordkeeping costs, under an LRRP rule for P&C buildings, for the first/initial year of certification, re-certification years, and other years. Costs include time to familiarize oneself with the rule requirements (3 hours), complete and return the certification form, and perform an estimated 4.8 hours per firm per year of recordkeeping responsibilities. Total cost estimates are as follows: initial year $392.00; re-certification year $251.00 and; other years $227.00. (Click here to review EPA’s estimated recordkeeping costs.)

Please send your comments to AGC’s Leah Pilconis at pilconisl@agc.org by Dec. 7.

Background

EPA’s current LRRP rule applies whenever lead paint is affected by construction work in pre-1978 “target housing” or “child-occupied facilities” only. For several years, EPA has been working to develop a new federal rule to address purported lead-based paint hazards that may be created by renovations on the interior or the exterior of existing public and private-sector commercial buildings. In accordance with the terms of its September 2012 litigation agreement with environmental and health advocacy organizations, the agency agreed to either sign a proposed rule by July 1, 2015, covering renovation, repair, and painting activities in P&C buildings, or determine that these activities do not create lead-based paint hazards. EPA recently notified the litigants that it is not going to meet the July 1, 2015, deadline for proposal. EPA plans to revisit the timing of this rulemaking action after it conducts the necessary steps to complete: (1) the Small Business Advocacy Review process (EPA has invited AGC to a Dec. 9 meeting to begin discussion of the issues above), (2) an industry survey (forthcoming), and (3) peer review of EPA’s “technical approach” documents.

For more information on EPA’s LRRP requirements, read AGC’s fact sheet and contact Leah Pilconis at pilconisl@agc.org.


Reminder: Start Early on EPA Lead-Paint Certifications Up For Renewal in 2015

Have you checked when your U.S. Environmental Protection Agency (EPA) Lead Renovation, Repair and Painting (LRRP) program certifications are up for renewal?  It is time to start thinking about renewing certifications that expire in 2015.  The re-certification process may take several months to complete.  EPA has up to 90 days after receiving a complete application for firm certification to approve or disapprove the application.  In addition, renovators must follow the established timeline to complete “refresher” training.  Don’t delay getting started with your firm or individual re-certifications!

According to the EPA, “… no firm working in target housing or child-occupied facilities, where lead-based paint will be affected by the work, may perform, offer or claim to perform renovations without EPA Firm Certification.” In addition, firms must have at least one LRRP “Certified Renovator” assigned to each job site where lead-based paint is disturbed.  The LRRP Certified Renovator is required to train all non-certified people at the job site in the use of lead-safe work practices.  These requirements took effect on April 22, 2010.  Under the Toxic Substances Control Act (TSCA), EPA may file an enforcement action against violators of the LRRP rule seeking penalties of up to $37,500 per violation, per day.

For more details on the LRRP program, see AGC’s Fact Sheet.  And, if you missed it, click here to read a more in-depth article on the certification renewals that ran in the previous issue of the Observer.

For more information on EPA’s LRRP rule, please see AGC’s Fact Sheet or contact AGC’s Leah Pilconis at pilconisl@agc.org.


$100K Stormwater Fines Are Not a Myth; AGC Webinar Helps You Get Prepared for the Next Generation of Enforcement

Register now for AGC’s Federal Stormwater Update webinar on December 15, 2014, from 2:00pm-3:30pm. Just weeks ago, a company settled alleged stormwater violations at a construction site by agreeing to pay a civil penalty of more than $110,000. Protect your company from costly fines, negative press and a soiled reputation!

Don’t miss this critical stormwater compliance information just for contractors. You’ll hear it straight from the U.S EPA regulators who are writing new stormwater permits and new, groundbreaking rules. This webinar will cover EPA’s newly released policy on when to set numeric limits in stormwater permits and how to implement TMDLs or pollutant load restrictions for sediment-impaired waters. (Just released on the eve before Thanksgiving.)

In addition, our expert panelists will provide “need-to-know” information on stormwater permitting and reporting requirements, the changing focus towards green infrastructure and runoff retention, helpful BMPs and online tools/technologies, as well as an introduction to green infrastructure strategies and opportunities. The federal landscape continues to evolve – participate in AGC’s webinar to stay current. Click here to register now.



Speakers:

  • Erika Farris, U.S. Environmental Protection Agency, Office of Water
  • Carey Johnston, U.S. Environmental Protection Agency, Office of Compliance
  • Bob Adair, Construction EcoServices
  • T. Luke Owen, NPDES Stormwater Training Institute

By participating in this webinar, attendees will learn to:

  • Plan for EPA action related to applicable stormwater programs.
  • Know about recent EPA stormwater enforcement actions and the agency’s enforcement priorities.
  • Explain best management practices related to stormwater management; gain insider knowledge on what works in the field.
  • List common low-impact development or green infrastructure strategies.
  • Recognize (and understand the purpose of) several online stormwater compliance and enforcement tools.


Participate in the Industry’s Premier Event – AGC’s 96th Annual Convention

March 18-20, 2015 | San Juan, PR

No one knows the future, but gaining a comprehensive view of where you are, where you are going and where you need to be can only strengthen the educated decisions construction professionals have to make every day. Take the opportunity to step outside, analyze the direction your organization is heading, listen and compare that with other construction professionals and take that perspective back to your organization. 

As our premier event each year, the AGC Convention and Technology & Construction Solutions Expo is the ideal opportunity to see everything AGC can do for you and your business. This year's convention will include professional development sessions covering:

  • Workforce Development
  • Drones in Construction
  • Leadership
  • Risk Management
  • Quality Control
  • Marketing

and Much More! Register by Feb. 15, 2015 and save up to $100! Click here for more information.


Volunteers Needed To Serve on Association’s Environmental Steering Committee

Each year, AGC seeks nominations for qualified and motivated individuals from the AGC Environmental Forum to serve on the steering committee for the forum. Would you like to play a leadership role in AGC of America’s environmental advocacy, education and outreach efforts?

The AGC Environmental Forum allows all AGC members and chapter staff who have an interest in construction-industry environmental issues to connect and interact with each other, keep pace with the latest environmental developments, and participate in the association’s policy making on environmental matters.  Members of the steering committee have direct access to federal regulatory officials, influence over environmental policy, and a means to exchange valuable information with one another and industry peers.

Interested AGC members who meet the criteria below would be invited to serve a three-year term on the forum’s steering committee, beginning April 2015.

Specifically, AGC seeks steering committee members who meet the following guidelines:

  • AGC member in good standing.  Representatives from construction firms serve as full voting members of the steering committee.  Representatives from service provider firms can serve as non-voting associate members to provide expert advice on issue-specific trends or regulatory issues (e.g., stormwater).
  • Knowledge and interest in environmental requirements and trends that impact construction activities in all markets (candidates are not required to be an expert on environmental issues, however, basic knowledge and strong interest is essential).
  • Demonstrated capacity to exercise good judgment in consideration of competing association objectives.
  • Breadth and depth of understanding and knowledge in the construction industry, AGC of America and beyond.
  • Willingness to devote time and effort to the well-being of the construction industry.

The steering committee serves several functions, including but not limited to:

  • Oversee the activities of the forum and task forces.
  • Make reports and recommendations on behalf of the forum to the executive board.
  • Develop policy recommendations, meetings and other events regarding matters within the scope of the forum.
  • Establish and sunset task forces within the forum.

Steering committee members are expected to attend a yearly steering committee meeting usually held in Washington, D.C., in conjunction with the annual AGC Contractors Environmental Conference.  No other travel is typically required during the year. Throughout the year, the forum’s steering committee meets via monthly conference calls to provide feedback and recommendations to AGC of America’s environmental staff. Information and ideas frequently are exchanged via email; steering committee members must have regular access to computers and the Internet and be willing to check their email for steering committee communications on a regular basis. steering committee members must be willing to commit, on average, 2 hours per month on steering committee conference calls, including discussing and voting in a timely manner on various issues. Steering committee members also must be prepared to volunteer to oversee occasional tasks, including serving on task forces if needed.

Please send nominations and short bio or resume to Melinda Tomaino via email (tomainom@agc.org) no later than Friday, Feb. 27, 2015.  Self-nominations are accepted.  AGC of America staff will consult with its chapters on nominations received from companies within their membership.


Looking for a Tool to Help Communicate Environmental Requirements to Your Subcontractors? Check Out AGC’s EMS Toolkit

Imagine having all your environmental compliance and sustainability information in one place, easily accessible and customizable for the unique needs of each project. Now consider how such a tool would make it easier for you to share relevant information with the subcontractors working on your project. Environmental programs and management systems are the super-tools that can help make this possible. AGC’s free guides will get you started.

Environmental professionals within many different industries use these types of programs and management systems to organize and manage legal requirements as well as sustainability goals. AGC walks you through the steps with online resources for developing a construction-specific environmental program or an environmental management system (EMS) — supporting environmental compliance and the achievement of environmental or sustainability goals.

Get started developing your company’s program by using the free AGC guides, links to government and other resources and case studies available on AGC’s EMS Toolkit. AGC members helped develop these guides, so that they better address the attributes of a construction firm versus, for example, a manufacturing facility. The first guide is a short, reader-friendly overview of developing an environmental program with tips demonstrating three levels of complexity depending on what would best suit an individual company: the Environmental Program Guide. The second guide is an in-depth resource that gives instruction on developing a comprehensive environmental management system (EMS): the AGC EMS Guide.

AGC hopes you will find the EMS Toolkit a helpful resource; and AGC will continue to develop the resources provided.

If you have any questions, please contact AGC’s Melinda Tomaino at tomainom@agc.org or (703) 837-5415.


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