AGC's Environmental Observer - February 25, 2015 / Issue No. 02-15 (Print All Articles)

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AGC Submits Second Round Comments on NPDES Electronic Reporting and Transparency Rule

AGC submitted a second round of comments to the U.S. Environmental Protection Agency (EPA) on its proposed nationwide National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule that would require contractors to electronically file their stormwater permits and related documentation forms (rather than using paper-based submissions). 

AGC’s letter raises concerns with the practical implementation of switching the entire nation to a unified system of electronic reporting – including the need for dependable mechanisms/procedures to promptly correct errors, protect confidential business and other sensitive information, clarify or provide proper context for e-submissions, obtain valid electronic signatures and address inevitable system malfunctions.

AGC also recommended that EPA allow states permitting authorities to integrate electronic reporting into their NPDES permits as they are reissued – following the traditional five-year NPDES permit cycle – to ensure that delegated states (responsible for issuing permits) remain the initial recipient of permit data and to avoid the need to “double-report” to both EPA and state regulatory agencies.    

More Construction Site Data Going to Washington

AGC’s letter expresses concern that EPA’s proposal would increase the amount and nature of the site-specific information that federal EPA collects and disseminates pertaining to active construction sites.   EPA’s Supplemental Notice acknowledges that: “The proposed rule, in conjunction with EPA’s current public data access tools, would provide a more complete and easily accessible set of facility permit, compliance and enforcement data to the public” [emphasis added].  79 Fed. Reg. 71067 (Dec. 1, 2014).  For example, the proposed rule would—

  • Create a new EPA-generated NPDES Noncompliance Report that would track noncompliance for both “major” and “nonmajors” NPDES facilities (e.g., construction sites) and disclose “single-event violations,” among other things.  (Currently, states enter inspection-related information into EPA’s data system for major facilities only.  Information on nonmajors is manually submitted to EPA or interested stakeholders upon request; it is not easily accessible.)
  • Require electronic submission of Discharge Monitoring Reports from both major and nonmajor dischargers.

It appears that the above-referenced information would remain on EPA’s website long after a construction project is complete and the contractor has terminated his permit coverage (and any associated Clean Water Act responsibility associated with the site.)  AGC reiterated its previously communicated concerns regarding the general public’s unrestricted access to all electronically submitted data and the potential for such data to be misinterpreted or misconstrued.

AGC’s letter emphasizes the transient nature of construction operations, pointing out the significant change in permitted sites from year-to-year as projects are complete.  In questioning the value of collecting site-specific information from hundreds of thousands of temporary operations each year, AGC also urged EPA to limit the universe of construction facilities for which electronic reporting  is required by: (1) providing a waiver for sites that lack broadband capability or high-speed internet access and (2) exempting  from the rule seldom reported documents (e.g., No-Exposure Certifications) and simple but very frequently received documents (e.g., Notices of Intent (NOIs) and Termination (NOTs) for construction stormwater general permits) — which equate to hundreds of thousands of pieces of paper each year.

EPA staff has done extensive outreach with AGC (via webinars, emails and face-to-face meetings) on the impacts this rulemaking to construction site operators.  AGC will continue to communicate with EPA and advocate for a workable final rule.  Click here for additional background on AGC’s efforts.

For more information, please contact AGC’s Leah Pilconis (Senior Environmental Advisor) at

Federal Construction Must Plan for Flood Risks from Climate Change, Per New Executive Order

In furtherance of the administration’s plan to increase the resiliency of federal actions, President Obama released a new Executive Order 13690, “The Federal Flood Risk Management Standard,” as directed by the President’s Climate Action Plan.  Notably, the order expands the definition of “floodplain” (higher flood elevation and expanded flood hazard areas) that all federal agencies must use – and builders must follow – for all federally-approved or funded projects. The Federal Emergency Management Agency (FEMA) is soliciting public input on newly released “guidelines” that will instruct federal agencies on how to implement the new Federal Flood Risk Management Standard (FFRMS).

E.O 13690 - Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input – was released on Jan. 30.  It amends E.O. 11988, Floodplain Management, which dates back to the year 1977.  It creates a new FFRMS (national minimum) to ensure that federal actions that are located in or near the floodplain last as long as intended by considering risks, changes in climate, and vulnerability. 

At the president’s request, FEMA has published for public comment draft instructions on how federal agencies should go about implementing the new Federal Flood Risk Management Standard.  Click here to directly access and review the draft guidelines.

Of great importance to federal contractors, the new standard requires federal agencies to update their flood-risk reduction strategies and expand the flood elevation and hazard areas they use when deciding where and how new development, redevelopment, and construction occurs.  In their planning of federally-funded buildings, roads and other infrastructure projects, federal agencies must use one of three approaches to account for the impact of possible flooding from rising sea levels or more extreme precipitation (see below for more details).  In turn, federal builders will need to meet the selected requirements during construction.

The guidelines, once final, will direct federal agencies in implementing the new Federal Flood Risk Management Standard, which they will do through agency-specific policies, guidelines and procedures.

Request for Input

FEMA is actively soliciting stakeholder input on implementation of the new Federal Flood Risk Management Standard. The public may comment on the draft amended Floodplain Management Guidelines through April 6.  The administration has also planned a series of live listening sessions around the country (kicking off in Ames, Iowa on March 3 with additional sessions set to be held in Biloxi, MS; Sacramento, Calif.; and Hampton Roads, Va.), as well as a web-based listening session.  Click here for details. 

To submit your own written comments, or to view the public submissions submitted to date, visit the online docket

More Details

E.O. 13690 updates a E.O. 11988 (dating back to 1977) on floodplain management, which required federal agencies to avoid, to the extent possible, adverse impacts associated with occupancy and modification of floodplains and to avoid support of floodplain development wherever an alternative exists.  Since 1977, the term “floodplain” has meant that area subject to a 1%-or-greater chance of flooding in any given year – the 100-year storm event.

As abovementioned, E.O. 13690 creates a new Federal Flood Risk Management Standard (FFRMS) standard for all federally-approved or funded projects and significantly expands the areas to be protected. Now, federal agencies will have three options for establishing the new FFRMS elevation and flood hazard areas for consideration in their decision-making:

  • Climate-informed Science Approach - Using the best-available data and methods to forecast changes from flooding.
  • Freeboard Value Approach - Adding an additional two or three feet, depending on the criticality of the building or structure, to the base flood elevation of the 100-year flood.
  • 500-year Elevation Approach - The area subject to flooding by the 0.2%-annual-chance flood.

The full extent to which federal agencies will tailor new and existing regulations, policy, and guidance to reflect the new floodplain definition and flood-risk reduction strategies is still unclear.  But if interpreted broadly, these changes could impact many programs including—

  • Clean Water Act permitting (under the proposed “Waters of the U.S.” rule, all waters in floodplains are federally jurisdictional);
  • FEMA levee accreditation;
  • Thee National Flood Insurance Program (e.g., community enrollment, mandate to purchase insurance, lender requirements, building codes and standards);
  • Endangered Species Act Section 7 Consultation (the floodplain is identified as critical habitat for many listed species); and possibly
  • Homes built under the Federal Housing Act and HUD housing and loan programs.

Additional background information on these topics is available on the FFRMS website or in the online docket for this Notice at, Docket ID FEMA-2015-0006.

AGC would appreciate hearing from its members on this issue.  If you have any questions or concerns about the new Federal Flood Risk Management Standard and implementing Guidelines as drafted, please contact AGC’s Leah Pilconis or Scott Berry at

House and Senate Hold Rare Joint Hearing on Clean Water Act Jurisdiction

Members of the House Transportation & Infrastructure Committee and the Senate Environment & Public Works Committee held a joint hearing to examine the state and local impact of the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers’ proposed rule expanding jurisdiction under the Clean Water Act.

The first panel consisted of EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy and lasted more than three hours. Republicans were on the offensive, talking about the rule’s expansion of jurisdiction impacting many different sections of the economy including agriculture, construction, energy, and manufacturing.  Many focused on the Small Business Administration’s Office of Advocacy calling for the rule’s withdrawal with others bringing up maps the House Science Committee had uncovered showing possible extent of the rule’s reach.  Democrats instead chose to focus on the impacts the rule could have on water quality, branding opponents of the rule as spreading myths and misinformation and being opposed to cleaner water.

A second panel of state and local government witnesses focused the lack of consultation the agencies did and the costs of implementation that state and local governments would face under the new rule. Most did not agree with the agency witnesses’ assertion that the rule would clarify and actually reduce jurisdiction.

For more information, please contact Scott Berry at (703) 837-5321 or

Next Generation: Future Trends in EPA Enforcement

The regulated community can expect settlement negotiations stemming from U.S. Environmental Protection Agency (EPA) enforcement actions to become more complex and costly in the near future.  The enforcement chief at EPA headquarters has directed agency staff to incorporate advanced monitoring, electronic reporting and independent third party auditing into agreements to resolve alleged environmental violations. AGC expects this to facilitate citizen oversight – and citizen enforcement – of environmental laws. 

Specifically, EPA’s Office of Enforcement and Compliance Assurance recently issued a memorandum to EPA enforcement personnel directing them to use Next Generation Compliance (NextGen) tools in administrative and civil judicial enforcement settlements whenever appropriate. The specific tools highlighted in the EPA memorandum, and which bear watching by the regulated community, include:

  • Advanced monitoring of pollutants on a real-time basis using emerging technology;
  • Independent third party verification of compliance with settlement obligations;
  • Electronic reporting of data in a searchable format; and
  • Public accountability through data transparency and accessibility.

AGC has previously written articles about EPA’s NextGen initiative and what it may mean for the construction industry.  For example, advanced monitoring and electronic reporting, when combined with real-time disclosure to neighbors or citizen groups, will certainly facilitate citizen oversight and citizen enforcement of environmental laws.  AGC has cautioned EPA in written comments and at face-to-face meetings that while “transparency” of data can be helpful in some instances, it can also be abused or misinterpreted, and thus create confusion as to a facility’s compliance status. AGC also has expressed concern that NextGen does little to reward good behavior; it overlooks positive feedback as a driver of improved compliance.

As EPA’s operating budget continues to decline, AGC expects the agency to increasingly rely on technology advances (like electronic data reports) to identify environmental violation, rather than the traditional “boots on the ground” site inspections approach. To this end, EPA has touted its commitment to expand the sharing of data across all levels of government (federal, state and local) and with the public at large.

While we already have seen some use of some of these NextGen tools in different EPA regions, the memorandum recommends that they be incorporated into settlement agreements nationwide – through injunctive relief, mitigation measures, and supplemental environmental projects.  EPA has provided a list of examples of what it considers to be Next Generation settlements.

For more information, please contact Leah Pilconis, Senior Environmental Advisor to AGC, at

EPA’s Web Tools Heighten Transparency of Environmental Inspection and Compliance Data

The U.S. Environmental Protection Agency’s (EPA) Office of Compliance has launched a new website that offers some insight into the agency’s future plans and direction for sharing compliance-related information and ensuring that regulated companies follow the law. Prominently featured is the Enforcement and Compliance History Online (ECHO) database, which provides the ability for anyone with Internet access to download data to analyze violations at any of the 800,000 regulated facilities nationwide that are currently part of the system. Forthcoming regulations like the Electronic Reporting Rule for stormwater discharge permits are expected to increase the scope of construction-site data that is uploaded to the system. 

Here are a few of the features on EPA’s new Office of Compliance website that the construction industry should be aware of:

  • At the heart of EPA’s compliance program is the inspections of regulated sites and facilities. EPA’s new site explains how they are conducted. 
  • The new site provides easy access to ECHO, an online tool that EPA is calling “one of [its] most important and popular resources.” ECHO lets anyone analyze compliance and enforcement data (e.g., information about permit data, environmental inspections, violations, and enforcement actions and penalties assessed for EPA-regulated facilities) through dashboards, maps and charts. EPA touts that the site is updated weekly and visited more than 2 million times a year. 
  • The site provides information about EPA’s Next Generation Compliance program, which emphasizes electronic compliance reporting and greater public availability of compliance information.
  • On a more positive note, the new EPA site prominently links to the Compliance Assistance Centers, including the AGC-sponsored Construction Industry Compliance Assistance (CICA) Center (  The recently upgraded CICA Center offers contractors comprehensive tools and the latest information on state and federal environmental requirements as well as green construction and environmental management programs.

Public Access to Your Environmental Inspection and Compliance Data

In the near term, AGC members may want to consider assigning a representative to access and monitor what EPA is posting about their facilities.  Some contractor firms have reported errors in the data that is displayed in the system.  As more information on construction sites gets uploaded to ECHO, it will become increasingly important for companies to take steps to monitor and correct any erroneous data.

ECHO can be used to display trends in compliance and enforcement data through dashboards, maps, and charts. Some AGC members already are using ECHO to analyze and benchmark themselves against other regulated facilities in their region.  Similarly, construction firms can use ECHO to monitor compliance across their own jobsites/facilities.  Project owners and investors may use ECHO to factor environmental performance into their decisions.

To find out more, please contact AGC's Senior Environmental Advisor Leah Pilconis at

EPA Solicits Input on New E-Enterprise for the Environment Portal

The U.S. Environmental Protection Agency (EPA) plans to transform how it works with industry and partner government agencies. To this end, EPA is requesting public comment through April 26 on the development of an “E- Enterprise for the Environment” portal and the key functions such a portal should provide.  The portal (a website that acts as a point of access to information and tools) would feature consolidated entry points for businesses and citizens to access, and take action on, federal and state environmental program information and resources.

Currently, EPA is scoping out the exact functionality and services of the Environmental Portal, which the agency expects to execute in several stages, starting this fall 2015.  What AGC knows at this point is that EPA intends to create a web-based data-sharing system that regulated entities would use to apply for permits, report air emissions or effluent discharges, check their compliance status and learn about new regulations. Regulators (EPA and the states) would be able to share environmental data electronically with each other. In this way, E-Enterprise would leverage advances in technology (e.g., monitoring and reporting) and data management. It also would also give the regulated community and the public at large significantly more access to environmental information. 

A related EPA initiative called Next Generation Compliance seeks to promote many of the same elements of E-Enterprise. As a step towards harnessing large amounts of “open data,” EPA already has begun efforts to eliminate paper-based filings and move to a required e-filing system nationwide (e.g., NPDES Electronic Reporting rule).

AGC recently met with EPA staff to begin discussing potential opportunities to integrate the AGC-sponsored Construction Industry Compliance Assistance Center ( with any portal that EPA may choose to create.  In follow-up written comments, AGC will reiterate how the CICA site is making it a lot easier for contractors to take the necessary steps to comply with all environmental regulations for their projects.  EPA is also asking for feedback on the positive/negative aspects of it requiring (versus encouraging the voluntary) use of a portal to fulfill environmental regulatory obligations.  AGC members already have shared that the system would need to be user-friendly because the vast majority of people who would use it are not experts in information technology or EPA requirements.  AGC is continuing to do outreach and solicit member feedback on this initiative.

If you need more information, or would like to share your opinion on the most important attributes for EPA’s Environmental Portal, please email AGC’s Senior Environmental Advisor Leah Pilconis at

Use the CICA Center to Meet All of Your Environmental Services Needs

Are you maximizing the free, online resources on the new Last month, AGC debuted the newly updated Construction Industry Compliance Assistance (CICA) Center to provide contractors with comprehensive tools and the latest information on state and federal environmental requirements as well as green construction and environmental management programs. In addition to its educational tools, the website features an environmental services directory.

Contractors can use the CICA Center Environmental Services Directory to locate companies and professionals engaged in the business of preparing erosion control and stormwater plans, best management practice design for stormwater, construction site inspection, stormwater training, and wetlands delineation consulting services.  The CICA Center Environmental Services Directory also serves as a gateway to several government maintained directories, such as listings of certified Lead, Renovation, Repair and Painting (LRRP) firms.

Professionals can sign up to be included in the directory for no charge by completing the request form at the top, right of the directory.  If you would like to increase your exposure to the thousands of construction industry professional who are visiting the CICA Center website each month (and dually help support the continuation of this great industry resource), please considering a prominent advertisement on the site - and click here for a media kit. 

The CICA Center is made available through a partnership between AGC of America, the U.S. Environmental Protection Agency (EPA) and the National Center for Manufacturing Sciences (NCMS).  Resources and/or news items on CICA are provided for informational purposes only and do not imply an endorsement by AGC, EPA or NCMS.

For more information, check out the or contact AGC's Melinda Tomaino at or (703) 837-5415.

Save the Date for the 2015 AGC Contractors Environmental Conference Coming September 2-3

Your Environmental Compliance and Sustainability Management Conference

AGC of America has just announced the date and location for the 2015 Contractors Environmental Conference. The 2015 CEC will be held on September 2-3, 2015, in Arlington, Virginia, at The Westin Crystal City—right across the river from our nation’s capital. Stay tuned for more information and special offers.


Follow @AGCEnvironment for Compliance and Sustainability News Relevant to Construction Professionals

AGC’s environmental Twitter account — @AGCEnvironment — is your resource for environmental compliance and sustainability news and information from a broad range of sources. AGC’s Director of Green Construction combs the Web to collect information of interest in one easy place for you to access.

Tweets include information on EPA’s use of green infrastructure as a requirement for municipalities, news about the proposed “Waters of the US” rule, brownfields information, porous pavement and other green infrastructure strategies, certification/rating system news, resilient infrastructure, green leasing and more.

If you are making environmental news, let us know.  AGC also highlights members that are making the news or blogging about relevant topics. Keep AGC’s Director of Green Construction in the loop so that we can highlight your environmental efforts.  If we have missed some relevant environmental news about your company, use the Twitter message function to let us know.

Follow @AGCEnvironment today! And please let your colleagues and friends know about this AGC resource.

Tweets/re-tweets, follows and mentions do not imply endorsement. This resource is made available strictly for informational purposes.

For more information, contact AGC’s Melinda Tomaino at or (703) 837-5415 – or send us a message through Twitter.

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