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EPA Regulation Overview

POTENTIAL NEW RULES AFFECT ALL ASPECTS OF CONSTRUCTION
BY SHERYL S. JACKSON

The U.S. Environmental Protection Agency (EPA)’s rulemaking pipeline is filled with many new or enhanced rules and regulations scheduled for release in the upcoming year or two. While national ambient air quality standard revisions for pollutants such as ozone and fine particulate matter will affect contractors less directly — mainly via restrictions on equipment emissions in areas with poor air quality — there are three key issues that have direct impact on contractors’ business.

1. STORM WATER CONTROLS
Storm water regulations affect all AGC members, no matter what type of construction, and there are a number of rules in the works, says Leah Pilconis, senior environmental advisor, AGC of America. “One of the top issues of concern is EPA’s considerable expansion of the current National Pollutant Discharge Elimination System (NPDES) program and establishment of new performance standards to control runoff from newly developed and re-developed completed sites,” she says. While the current NPDES standards apply to active construction sites, the new rule is expected to set a retention-based standard that would require construction of permanent, long-term storm water discharge controls that soak up and infiltrate storm water throughout the life of the completed roadway or building. In addition to conventional practices, the new rule is expected to place emphasis on integrating green infrastructure techniques into project design such as green roofs, rain gardens and permeable pavements.

“Our industry is concerned about how differences, such as soil type and rainfall amount, among sites will be accommodated,” explains Pilconis. Another very real concern is who is ultimately responsible for operation and maintenance of those controls. “Although it is presumed the owner will be responsible, the contractor will build the controls,” she says. “Who is responsible if the controls fail to work as designed?”

EPA was scheduled to propose the new rule for storm water discharge by June 10, 2013, pursuant to a legal settlement with the Chesapeake Bay Foundation, but it has been delayed. News about the proposed Post-Construction Storm Water Rule will be posted on the AGC website as soon as it is released, says Pilconis.

EPA has also established mandatory, minimum baseline technology-based controls for erosion and sediment on a construction site. The original “Effluent Limitations Guidelines” rule was finalized in 2009 and included a controversial numeric discharge limit for turbidity. The numeric requirement was legally stayed by the EPA and will be withdrawn due to settlement of a lawsuit, but contractors must work closely with states to ensure that the numeric limit is not included as permits are issued or renewed, says Pilconis. “The EPA will finalize the proposal, officially withdrawing the nationwide numeric limit by February 2014, but some states may be misinformed or confused about their obligation to include a numeric limit in their permits,” she says. Contractors should actively work with state officials to be sure they are educated about the EPA’s plan to withdraw the limit and to understand that there is not enough data to support the stated limits. “States can set their own requirements for permits, as long as they meet the minimums established by the EPA, but they need to understand they are not legally required to include the numeric limit.”

2. LEAD-BASED PAINT
EPA is considering changes to the federal “Lead Renovation, Repair and Painting” (LRRP) rule that would affect construction that disturbs lead paint in or on the exteriors or interiors of public and commercial buildings. EPA is evaluating the merits of a proposed rule that would greatly expand the current LRRP program that applies to work only in pre-1978 housing or child-occupied buildings (such as schools or day care centers). At a June 2013 hearing, AGC presented the argument that Occupational Safety and Health Administration (OSHA) rules regulating lead in construction already encompasses, and surpasses, the EPA safeguards.

“We want to see EPA and OSHA coordinate their efforts and avoid creating overlapping regulations,” says Pilconis. While the OSHA regulations focus on protection of employees performing activities that may disturb lead paint, the EPA is evaluating protection of the surrounding public. “If OSHA’s rules are sufficient to protect the employees, we don’t believe it is possible to prove a risk to others outside of the work area,” she adds.

3. FLY ASH
The EPA continues to evaluate the regulation of coal combustion residuals (CCRs), including fly ash. Twelve million tons of fly ash were used in ready-mix concrete in 2011 – a beneficial re-use of a recyclable material. AGC supports House Bill H.R. 2218, the Coal Residuals Reuse and Management Act of 2013, which establishes reasonable disposal requirements and safeguards the future use of CCRs and fly ash.

“Fly ash has been safely used in concrete construction for more than 50 years,” points out Pilconis. If the bill passes, the future use of fly ash will be protected. If the bill does not pass, the EPA would determine regulation of CCRs. “Unfortunately, one of the options the EPA is considering is designating fly ash and other CCRs as hazardous waste, which would eliminate its use in construction.” [Editor’s note: The vote on H.R. 2218 occurred while this publication was in production. For updates on the results of the vote as well as other updates on EPA regulations, go to www.agc.org/environment.]

AGC SUPPORT FOR CONTRACTORS
Monitoring the regulatory environment and keeping AGC members up to date on issues that affect their business are only two ways AGC staff supports contractors as they address EPA guidelines and rules. A new tool that helps contractors meet EPA documentation requirements related to storm water management will soon be available from AGC.

“The application for mobile devices was developed by AGC members working with EPA officials to create an inspection report form as well as a corrective action report form,” explains Pilconis. The app, which can be downloaded to any mobile device, enables a contractor to satisfy minimum reporting requirements under EPA’s Construction General Permit, the permit that serves as a model for the nation. The app should be available by the end of summer 2013.