Three key stormwater developments are in the works that will affect contractors nationwide.  To ensure the construction industry's voice is heard, AGC of America has created a Stormwater Task Force (made up of 17 AGC Environmental Network members) to respond to current rulemaking efforts and enforcement initiatives aimed at restricting construction site runoff. Effluent Limitations Guidelines - First, the U. S. Environmental Protection Agency (EPA) has finalized first-time effluent limitations guidelines for the "construction and development industry."  The new rule is on EPA's Web site at http://www.epa.gov/waterscience/guide/construction. The so-called C&D ELG imposes nationwide monitoring requirements and enforceable numeric limits on the amount of sediment that can run off any construction site that disturbs 10 or more acres of land at any one time, despite AGC's years-long effort to explain the detrimental effect on the construction industry.  It also specifies the exact types of erosion and sediment controls that contractors must use, at a bare minimum, to control stormwater runoff on all construction sites that disturb one or more acres of land.  The rule takes effect in February 2010 and phases in over four years. The new ELG requirements will be incorporated into all federal and state individual and general National Pollutant Discharges Elimination System (NPDES) stormwater construction permits upon their next reissuance.AGC has a very established working relationship with the U.S. EPA's Office of Water and will be collaborating with senior staff from that office to hold joint educational programs on the new ELG rule in early March 2010.  EPA has also invited AGC to provide suggestions and recommendations as it works to draft a new federal construction general permit that will include the new ELG requirements. For more information, see the related article in this issue of AGC's Environmental Observer. Post-Construction Runoff Requirements - Second, EPA has committed to propose and take final action by November 2012 on a national rule that would include, at a minimum, new design or performance standards to control stormwater discharges from newly developed and redeveloped sites.  EPA recently announced that it will hold listening sessions in January 2010 to inform the public, and solicit feedback, on these upcoming rules that are currently in the works.  EPA also plans to collect information needed to support this rulemaking by distributing mandatory questionnaires to a "statistical sample" of commercial contractors and other entities that likely will be impacted by any new post-construction stormwater runoff requirements. EPA recently provided the construction industry with an opportunity to comment on its proposed "information collection request" (ICR) in an effort to reduce the paperwork and associated burden on companies that ultimately receive the mandatory questionnaire, in accordance with the Paperwork Reduction Act of 1995.  AGC submitted comments on the "industry questionnaire," stating that the proposed ICR is: premature and unauthorized by law, as it presumes regulatory authority that does not exist; overly burdensome and misdirected, as it misapprehends the role that contractor's play in the real estate development process; and ineffective in gathering data EPA believes it requires.  To read AGC's comment letter click here.  For more information, see the related article in this issue of AGC's Environmental Observer.Clean Water Act Enforcement Action Plan - Third, contractors everywhere can expect to see increased enforcement by EPA, including criminal and civil penalties for noncompliance, as well as more reporting and public oversight.EPA Administrator Lisa Jackson recently appeared before Congress to discuss the Clean Water Act's (CWA) permit program and EPA's immediate plans to strengthen its enforcement efforts. Jackson specifically called out construction sites as one of "the biggest threats" to our nation's waters, adding that EPA needs "to target enforcement to the most serious violations and the most significant sources." To address what she describes as an "unacceptably low" level of enforcement activity, Administrator Jackson announced the release of EPA's new action plan to strengthen federal and state CWA enforcement. AGC plans to develop recommendations on potential ways to increase industry's stormwater permit compliance and make better use of EPA's enforcement efforts, in accordance with the newly released EPA Clean Water Act Enforcement Action Plan.  For more information, click here.For additional information, contact Leah Pilconis at pilconisl@agc.org

Click here for the latest Common Ground Alliance e-newsletter with articles on the upcoming CGA Annual Convention March 2-4, 2010 in San Diego, California.Did you know that April is National Safe Digging month?The 2010 National Safe Digging Month (NSDM) Toolkit has been posted to Call811.com. It can be accessed by clicking the right-hand button on the bottom of Call811.com that reads, "Logos and Ads." You can also access by clicking here.In this year's toolkit, you will find recruiting tools for grassroots partnerships, templated NSDM press materials, online advertising materials, NSDM support buttons, gubernatorial support documents, and more.Suggestions to get you started:Secure your governor's support for NSDM. Contact your governor's office to ask him/her to support NSDM by issuing a proclamation. Available tools include letters, tips for finding the best point of contact, ideas for getting the most out of a proclamation and a proclamation example.Plan a NSDM event. Review the "concept overview" document, in the media relations folder of the toolkit, to get ideas for NDSM and Arbor Day events you could implement. Also, you will find a timeline and how-to steps.Promote NSDM in your advertising. If you're planning on doing any National Safe Digging Month advertising this April, either in print or online, check out the Advertising/Online section.For additional information about getting involved with CGA please contact Perry L. Fowler at fowlerp@agc.org

On October 29, 2009, the U.S. Department of Transportation's Pipeline and Hazardous Material Safety Administration (PHMSA) issued an Advanced Notice of Proposed Rulemaking (ANPRM) on Pipeline Safety: Pipeline Damage Prevention Programs. The purpose of the ANPRM is to begin soliciting comments in order to assess the adequacy of State's damage prevention enforcement regimes for oil, gas and other hazardous material pipelines.  PHMSA will use this information to develop criteria for federal enforcement of damage prevention laws in states that are deemed to have inadequate enforcement of damage prevention laws for excavators, utility/facility owners, one-call centers and professional locaters as mandated by the 2006 PIPES Act.Questions in the ANPRM are specifically geared at States to ascertain the adequacy  of their  damage prevention programs and enforcement  actions taken against excavators that damage underground facilities that convey hazardous materials, natural gas and petroleum. It is imperative that AGC Chapters and members consider the potential impact that federal enforcement of damage prevention law could have on your State's laws and consider how other stakeholder groups in your State will respond to this ANPRM such as utility commissions, one call notification centers, owners of oil and gas pipelines and owners of other underground facilities. This is an opportunity for AGC Chapters to reach out to stakeholders and ascertain the potential impact of federal enforcement in your individual states.AGC and its members are extremely supportive of state one-call programs, and we have been working with states to improve compliance, enforcement, and the effectiveness of one-call and damage prevention programs all over the country. The most successful efforts in this area have come from the joint efforts and joint obligation of the underground facility owners the locating industry, and contractors, which have joined together nationally to create the Common Ground Alliance (CGA). The CGA has been successful creating a cooperative and complementary environment for damage protection.AGC and CGA both support the premise that the best place for enforcement decisions to be made is in the states themselves. The federal government should encourage states to adopt policies and procedures that promote effective one-call programs and allow the states to operate and enforce them. AGC does not support a permanent federal role in enforcing state one-call laws-our position is that it is the state's job to enforce state laws. However in the circumstances that a State's damage prevention program is deemed inadequate federal enforcement should include the following provisions:Federal enforcement should occur only if the state is ignoring enforcement obligations;Federal enforcement should only be necessary until the state achieves a successful program in terms of enforcement; andMost importantly, to be effective, the approach to one-call enforcement must be balanced so that the responsibilities of the pipeline companies (such as locating and marking) are considered equally important as the responsibilities of the excavator (such as contacting one-call and digging with care). True one-call effectiveness is impossible without this recognition of shared responsibility.AGC of America will  submit comments on the ANPRM as will the Common Ground Alliance (CGA). However,  individual AGC Chapters are best prepared to respond to questions regarding current damage prevention programs and current enforcement in individual states. AGC of America will submit comments based on CGA Best Practices which have been developed over several years based on consensus of all damage prevention stakeholders and serves as the model for many state programs. AGC will also submit comments  specifically addressing questions about developing  an administrative process for Federal enforcement actions, potential establishment of Federal standards for excavators,  adjudication processes and existing requirements applicable to owners and operators of pipeline facilities.  Comments on the ANPRM are due on December 14, 2009 and AGC Chapters are encouraged to contact AGC with any questions, concerns or specific examples of what is working or not working in your state to incorporate into our comments.Click here to learn more about the ANPRM.For additional information please contact Perry L. Fowler at (702)837-5321 or fowlerp@agc.org

On October 29, the U.S. House of Representatives and the Senate approved the conference report providing appropriations for the Environmental Protection Agency, Department of the Interior and other agencies. The Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, passed on a party line vote (247-178) and included significant increases for EPA programs including a $2 billion increase over FY09 SRF programs.

Rulemaking has potential to impact excavation standards, including civil and criminal enforcement actions.

H.R.3202, the "Water Protection and Reinvestment Act," was introduced by Congressman Earl Blumenauer (D-Ore.) on July 14, 2009, with bipartisan support. It establishes a five year $50 billion fund for repairing America's corroded pipes and overburdened sewer systems, which pose serious health, environmental and security risks. The Water Protection and Reinvestment Act will provide a deficit neutral, off-budget and firewalled dedicated revenue source for water infrastructure that will not be subject to the uncertainties of the annual appropriations process.

President Barack Obama on October 28 signed into law $33.5 billion spending bill to fund government energy and water programs for the 2010 fiscal year.

U.S. Environmental Protection Agency (EPA) Administrator Lisa Jackson appeared October 15 before the U.S. House of Representatives Committee on Transportation and Infrastructure to discuss the Clean Water Act's (CWA) permit program and EPA's immediate plans to strengthen its enforcement efforts. Jackson specifically called out construction sites as one of "the biggest threats" to our nation's waters, adding that EPA needs "to target enforcement to the most serious violations and the most significant sources."  To address what she describes as an "unacceptably low" level of enforcement activity, Administrator Jackson announced the release of EPA's new action plan to strengthen federal and state CWA enforcement.

The National Rural Water Association (NRWA) represents approximately 26,696 public water and wastewater utilities in rural communities across the United States. On October 4, AGC Staff and M&U Regional Representative Dick Smailes, Contractors Association of West Virginia member, met with NRWA and other national leaders to discuss opportunities for collaborative efforts with AGC Chapters and members.  In 2009 and 2010, NRWA members will be working to administer $3.8 billion for construction, upgrades and expansions with Recovery Act funding provided through the USDA's Rural Utilities Service. For assistance establishing contact with your State NRWA Chapter, please contact AGC M&U Division Director Perry L. Fowler at fowlerp@agc.org or (703)837-5321.

AGC has been active in our efforts to ensure that the "Buy American" requirements of the Recovery Act did not seriously delay $6 billion allocated for drinking water and wastewater projects being administered by the U.S. Environmental Protection Agency (EPA) and $1.4 billion allocated for the USDA's Rural Utilities Service (RUS). Trade agreement exceptions to the "Buy American" requirements in most cases do not flow down to sub-federal entities, such as municipal utility authorities that procure most of these projects.  Unfortunately this new policy has created a great deal of confusion and delays as agencies have been forced to apply "Buy American" for Recovery Act programs where this policy has not previously applied.AGC has been successful in educating EPA about the about the potential negative impacts of "Buy American" on SRF-funded stimulus projects, including project delays, litigation, bid protests, price gouging and potential criminal penalties and liability if contractors unknowingly incorporate certain materials into projects that either are not domestically manufactured or are of unknown origin, such as valves, gaskets, screws, pipe fittings etc.  AGC has  also raised concerns about certain major, and in many cases advanced systems and pieces of equipment, that are not manufactured in the United States, or contain components manufactured abroad, but are preferred and specified based on performance by state regulatory authorities and water utilities. EPA has independently verified the validity of AGC's  concerns and has taken aggressive measures to ensure that there is a waiver process in place that recognize the realities of the water infrastructure market with respect to country of origin for materials and equipment incorporated into projects. To date EPA has issued 14 project specific regional "public interest" waivers and 4 national waivers including di minimus waivers which cover some of the aforementioned materials.AGC has hraised similar concerns with the USDA Rural Utilities Service (RUS) in early 2009, and on September 25 USDA issued their own  di minimus waiver citing the same logic that EPA has applied in the crafting of their waiver. Hopefully this will start to free up the estimated $3.8 billion in USDA projects it will fund with stimulus dollars. It is unknown whether additional waivers or guidance are forthcoming from USDA.Please see the attached document containing all regional project specific and national waivers of the "Buy American" provision as they relate to the EPA SRF and USDA RUS programs and make sure that your state and local water authorities and other AGC members are aware that waivers are being granted. Please note that project specific waivers must originate with owners procuring projects or state water authorityies funding projects . Contractors cannot initiate this process.  With respect to the di minimus waiver this will largely be the contractor's responsibility to account for costs and materials that fall under the 5% threshold.  For more information, contact Perry L. Fowler at (703) 837-5321 or fowlerp@agc.org