Coalition Files Amicus Brief Today in a Federal Appeals Court AGC and a coalition of industry groups file a friend-of-the-court brief today in a federal appeals court arguing that the U.S. Environmental Protection Agency (EPA) exceeded its authority under the Clean Water Act (CWA) when it revoked a Section 404 dredge-and-fill discharge permit duly issued by the U.S. Army Corps of Engineers (Corps). If EPA is allowed to revoke this permit, every valid Section 404 permit held by any entity — construction companies, public works agencies and individual citizens — would be stuck in regulatory limbo and potentially subject to the same unilateral, after-the-fact revocation. AGC’s brief lays out the staggering economic, policy and legal implications that would follow such an unprecedented action.

Association Also Weighs in on the Treatment of Air Data Influenced by Exceptional Events AGC recently submitted comments to the U.S. Environmental Protection Agency (EPA) on proposed revisions to its National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5).  AGC also commented on draft guidance to improve the Agency’s Exceptional Events Rule.  That rule allows EPA to exclude certain air-quality monitoring data when determining whether or not an area violates a NAAQS.

Guest Article by Tom Kelleher, Jr., Senior Partner, Smith, Currie & Hancock LLP Introduction – Green Is Now Green construction is not the “Wave of the Future” in federal government construction contracts, it is here now.  Whether building a new facility at a military base in Georgia or renovating a federal courthouse in the Pacific Northwest, the federal government is placing a strong emphasis on environmentally conscious (“green”) construction.  Motivations for adoption of green construction vary from a desire to conserve resources and avoid adverse impacts to the environment to reducing the cost of operating and maintaining a facility, which can easily have a life span of several decades.  Fortunately, environmental considerations and economics do not need to conflict as the long-term operating and maintenance cost of a facility can easily offset the incremental additional cost of designing and building a facility to achieve a specified requirement, standard, or code.

No EPA Decision Expected Until 2013. As the U.S. Environmental Protection Agency (EPA) continues to evaluate whether or not to regulate coal combustion residuals (CCRs) as hazardous waste, the other branches of government go at it on their own and inch forward toward a resolution.  Meanwhile, the regulated industry remains focused on empowering the states to manage the waste and safeguarding the beneficial use of CCRs, such as fly ash.  EPA also is taking a closer look at the potential risks of reusing the waste materials in construction activities.

The construction industry stands to benefit from a recent district court decision that blocked the U.S. Environmental Protection Agency (EPA) from further regulating Clean Water Act (CWA) Section 404 “dredge and fill” discharges (concerning surface mining activities) through guidance, calling instead for notice-and-comment rulemaking under the Administrative Procedures Act (APA).  The ruling builds on an earlier U.S. Supreme Court decision that now affords recipients of CWA compliance orders the right to challenge their alleged violations under the APA before EPA brings an enforcement action.  These decisions warn EPA that it may not practically treat guidance documents as regulation and serve as a useful check on EPA overreach of CWA authority.

AGC Environmental Forum members are invited to actively share their input and ask questions about the newest version of the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) Green Building Rating System.  Join AGC and the USGBC for a complimentary, virtual town hall on the afternoon of Sept. 11, 2012, to facilitate this discussion.

The U.S. Environmental Protection Agency (EPA) is accepting public comment on draft guidance to improve the process for implementing the Agency’s Exceptional Events Rule (EER).  The EER allows the EPA to exclude certain air-quality monitoring data when determining whether or not an area violates a national ambient air quality standard(s) (NAAQS).  Failure by any state to prove compliance with federal air standards could jeopardize federal funding for transportation projects in the state.

The U.S. Environmental Protection Agency (EPA) is taking a look at the factors that may attribute to the differences between the Agency’s “projected” and the “actual” costs of meeting various regulatory mandates.  Preliminary findings appear to show that EPA has overestimated the cost of the rules that currently are under analysis.  However, AGC’s experience over the last decade has found the exact opposite; namely that EPA consistently underestimates compliance costs. 

On August 10, several industry groups filed briefs asking the U.S. Court of Appeals for the District of Columbia to rehear a case decided in late June by the same court concerning the U.S. Environmental Protection Agency’s (EPA) regulations of greenhouse gas (GHG) emissions.  In the last Observer, AGC reported on this June 26 ruling that upheld the EPA “endangerment finding” for greenhouse gases and the Agency’s subsequent rules to control GHG emissions from mobile and stationary sources.  At the time of that article, it was unclear whether industry groups would appeal the D.C. Circuit ruling that denies key challenges to EPA's regulations of greenhouse gas emissions.

Pro-industry groups once again look to a policy fix to climate change regulation in light of a June 26 Federal appeals court ruling that upheld the U.S. Environmental Protection Agency’s (EPA) endangerment finding and subsequent rules using the Clean Air Act (CAA) to control greenhouse gas (GHG) emissions from mobile and stationary sources.  A few days later, EPA finalized the third step of its GHG “tailoring rule,” which phases-in the control of emissions starting with the largest stationary sources, and decided not to lower the regulatory thresholds in the near future.  It remains unclear whether pro-industry groups will appeal the ruling as well as whether there is sufficient appetite to address climate change on Capitol Hill.