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The Big Three


It might be the biggest understatement of the year, but for simplicity’s sake, the construction industry’s most pressing environmental compliance issues fall under three headings: water, oil and waste management. Regulations might be tight, but the combination isn’t as hard to swallow as it sounds.

The world of my childhood was a place where the water that came from the kitchen faucet was the same that arced over my lawn in the summertime, creating misty little rainbows under which the grass and flowers drank their fill and my friends and I danced and jumped and found cooling comfort from the sun. Water was water. And life was simple.

Today, if my kids wander out while the sprinklers are on, I’m always sure to remind them to steer clear. Why? These days, we use the reclaimed stuff for irrigation. Water is no longer water; it’s got a multitude of classifications: potable, non-potable, fishable, swimmable and so forth. And life — as any contractor trying to navigate the ever-shifting landscape of environmental compliance will tell you — is anything but simple.

There are seemingly innumerable issues to stay on top of. The best way, says Leah Pilconis, consultant on environmental law and policy and senior environmental advisor to AGC of America, is to stay connected. “AGC members need to join the association’s environmental forum. As members, they can count on regular updates on environmental matters and learn of upcoming conferences and other events they can attend to stay informed.”

Two of the many types of water that contractors encounter are storm water and that which presents itself in important areas called wetlands, both of which are a big deal if you make your living building anything — roads, homes, commercial projects or otherwise. And since laws that encompass water permitting are often verbose, here’s a great point from which to start: “At $37,500 per day, per violation,” Pilconis says bluntly, citing the Clean Water Act penalty that’s on the books nationwide, “fines for not properly controlling storm water runoff can easily skyrocket.”

Builders who are disturbing one acre of land or greater are required to get a host of permits involving storm water and erosion and sediment controls, and right now, the magic number for storm water turbidity (a fancy word for just how dirty the water coming off a job site is allowed to be; AGC calls this “the mud rule”) is on hold.

The U.S. Environmental Protection Agency (EPA), back in 2009, came out with an effluent limitation guideline for the construction industry — that supposed “magic number” — but a year later, the industry came back with challenges that culminated in a lawsuit. Long story short, “[the EPA was] forced to suspend indefinitely part of that rule, which was a numeric turbidity limit,” Pilconis explains. This one-size-fits-all number has been one of the most controversial industry topics over the past decade.

“[The original ELG number] was projected to cost a billion a year and the benefits were not at all commensurate with the cost,” she says. “The EPA admitted that its underlying data is flawed and unsupported.” It’s a not-unimpressive admission coming from a federal agency, but AGC members should remain vigilant about compliance, because the ELG hasn’t officially been withdrawn. “The legal term is ‘stayed,’” Pilconis notes. “It’s been put on hold, but even with that asterisk, the number is still in the code of federal regulations.”

Jo Moore, environmental director at the West Palm Beach, Fla.,-based Ranger Construction Industries, has a telling credo in her email signature: “There’s never a wrong time to do the right thing.” All of Ranger’s supervisors, project managers and estimators have received training to become qualified storm water inspectors. They take it seriously.

“Additional training programs are conducted as needed,” says Moore, “to keep the staff updated on new methods and products. In-house audits are performed to verify compliance and I attend regulatory inspections when they’re on the schedule.” Moore’s role extends to assisting project managers in developing storm water pollution prevention plans and other required environmental permitting documents on all of the company’s projects.

It’s been years and the storm water case rolls onward as the EPA, under court order, gathers more data to come up with a number that’s rooted in data and technology. “Our position has always been that it’s impossible to set one number for every situation — every soil type, climate condition, topography,” says Pilconis, “and the EPA has not yet been able to identify a technology that will work in all scenarios, which is why we still don’t have a limit.” But things could change.

“It’s important for construction professionals to be aware of when their storm water permits are up for reissuance and to be engaged through their local AGC chapter in making sure that the requirements aren’t overly burdensome.”

Separate from storm water is the permit program stemming from the Clean Water Act which prohibits construction work (meaning any pollutants comprised of dredged or fill material) in areas that are designated wetlands without first getting an approved 404 permit. “Unfortunately,” wrote Pilconis in a recent AGC newsletter, the extent of federal authority in such matters “is becoming even more confusing for the regulated community.” The U.S. Army Corps of Engineers and the EPA are supposed to release new guidelines this summer with an updated interpretation of what constitutes federally controlled U.S. waters.

“An increase in jurisdiction could increase construction costs and project delays with expensive permits that take years to obtain,” she warns. 404 permits are already backed up; new legislation will likely add to the pile. If your projects are likely to fall amid designated wetlands, you might want to get involved. “It’s long past time for a comprehensive conversation about federal jurisdiction, the bottleneck in the permitting process and the requirements in the permits themselves. AGC continues to meet with regulators and Congressional staff to try to find a balanced approach.”

Super-New — Superfund: Pilconis rates this concern as breaking news on the environmental front, despite the fact that the Washington state court decision from which it stems was handed down in 2010. “People are beginning to talk about it now. The court reached this shocking conclusion that any firm that designs and constructs a storm water disposal system could potentially be responsible for cleanup costs if they arrange for disposal of the water to a ‘Superfund’ site (also known as a Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, site).”

AGC has advised its Western chapters to make permit compliance and the limitation of hazardous substances a top priority. “It may not be enough,” says Pilconis. “AGC will continue to monitor this situation very carefully and engage in discussion with the states. Whether this case is a sign of things to come remains to be seen.”

Road construction, says Moore, can often create “head-on collisions” between environmental compliance and safety. And in southeastern Florida, where annual rainfall can surpass 60 inches, the law requires installation of erosion control devices. “However, any device that is sufficient to filter storm water effectively will also restrict the flow of water,” she explains, “so when you’re working on an existing roadway that is under traffic and must install devices, you also run the risk of creating ponding problems.

“The state environmental personnel will say ‘safety first,’ but on the other hand an inspector will insist on the erosion control device. If any water collects on the road and you have any contributing portion to the cause and then someone has a wreck, litigation is sure to follow.” The point? Compliance is sometimes easier said than done. Conflicts can happen. “And many times,” adds Moore, “solutions are not only challenging, but costly.”

Store oil on your job sites? Asphalt at your plants? Then you’re already aware that last November saw the compliance deadline for the EPA’s Spill Prevention Control and Countermeasure program. And Pilconis believes that the agency’s enforcement is going to be picking up.

“It’s important, because if a site stores more than 1,320 gallons of any type of oil product in aboveground storage containers, you’re covered under the regulation — even if you’re using two 1,000-gallon tanks that aren’t full — and you need to have a plan in place.” Said strategies must be threefold, covering storage, what to do in case of a spill and a plan for cleanup.

“The November deadline was extended multiple times — it went on and on and on,” says Pilconis, citing intents going back as far as 2006. But now it’s official, so members whose attention may have lapsed during the cry-wolf years need to be aware that the EPA is starting to enforce the program wholeheartedly.

AGC recently published a three-part series intended to help members determine their need for compliance with SPCC to help them develop a plan that meets EPA requirements. You can find it at http://news.agc.org/.

Depending on where your business operates, landfill space may or may not be at a premium, but waste management isn’t merely about where the trash goes, it’s how some of it is handled and disposed of. To that end, the EPA is in the process of modifying its regulations that govern how contractors manage construction waste materials that contain polychlorinated biphenyls (PCBs) and construction dust that contains lead.

EPA is working to “reinterpret” the definitions of PCB-contaminated bulk product waste (caulk or paint) and remediation waste (masonry or concrete). “This distinction is important as it determines the appropriate cleanup requirements and disposal options,” she wrote in another newsletter. “[What’s] being proposed in this notice would allow building material (i.e., substrate) ‘coated or serviced’ with PCB bulk product waste (e.g., caulk, paint, mastics, sealants) at the time of disposal to be managed as a PCB bulk product waste, even if the PCBs have migrated from the overlying bulk product waste into the substrate.” It’s one more issue contractors should be keeping a close eye on.

EPA also is working to expand the scope of its national lead-safe training/accreditation and work-practice requirements. Pilconis says it’s far-reaching. “It involves demolition, renovation, repair and rebuilding … right now, the program only covers housing or child-occupied facilities that are pre-1978, but [the EPA is] in the process of expanding this to potentially cover all commercial and public buildings — it could be huge.”

In Arizona, sending waste to the landfill is relatively inexpensive; the Grand Canyon State has quite a bit of open space. “Because of this,” says Cameron Flower, senior environmental manager for Kitchell Environmental Services, “recycling can sometimes be a more expensive option.”

It also makes it tough for a company to make a profit with a sorting facility for construction and demolition debris. “Mixed C&D dumpsters are not an option and more space is required at the job site for dumpsters. At a minimum,” he explains, “space for dumpsters or stockpiling of concrete, metals, wood, drywall as well as fresh trash must be considered when planning the site logistics.”

Kitchell is a large general contractor with far-reaching specialties — hospitals, schools, commercial and custom-home projects, and more. “Our environmental commitment stems from our award-winning Construction Environmental Management Program,” says Flower, whose division was founded in order to monitor the program. “KES implements the elements of CEMP to all Kitchell projects and provides environmental training to all employees.” In fact, KES has been so successful that it even offers CEMP-based consulting to other general contractors.

More and more, says Flower, they’re seeing projects that involve some level of sustainable design, whether LEED-certified or following similar guidelines. “These require the diversion from landfills of 50 to 75 percent of the nonhazardous waste generated by the project.” The rub is that in Arizona sorting facilities for construction and demolition waste are nonexistent; contractors must take a do-it-yourself approach.

“At our recent Phoenix Children’s Hospital project, we built a raised loading dock with a recessed storage area for various trash and recycling dumpsters,” he says. “The tops of the dumpsters were at dock level, making it easy to sort waste materials.” Subcontractors were required to separate recyclables into the clearly labeled containers, which were constantly monitored to prevent cross-contamination. “Contamination of one steel stud in the drywall or wood dumpster would result in the rejection of a six-ton load at the recycler, so monitoring was critical.”

Like Flower, Moore says vigilance is mandatory. She echoes Pilconis’ call for involvement as well. “It’s important to participate when comments or information are requested so that the regulations put in place are, to the best of our ability, well-thought-out and based on adequate science,” she says. Additionally, she recommends developing cooperative relationships with regulatory agencies. “We can help educate them with regard to practical concerns, to what we have to deal with in reality.”

Pilconis calls her colleagues in construction hugely compassionate and concerned with the environment, noting that many come before the EPA openly expressing their interest in protecting the air and water and soil. “But there is a balance between environmental goals and business operations,” she admits. “AGC supports pragmatic rules from the EPA, but what they’ve recently been pushing do a lot more financial harm without appearing to do much to protect the environment.”