DOT and EPA Release Regulatory Agendas

January 5, 2013
In addition to the Department of Labor, the Transportation Department (DOT) and Environmental Protection Agency (EPA) have released their top regulatory priorities for 2012.  Below is a list of regulations from these two agencies that have the potential to impact the construction industry, if finalized. Department of Transportation DBE Regulations: DOT issued a Notice of Proposed Rulemaking on Sept. 6 with the comment period closing on Dec. 24, 2012. While DOT claims that the NPRM suggests only minor changes in the regulations, AGC believes these proposed changes are substantial. The proposed rule would change bidding requirements, good faith efforts submittals, annual goal setting and how DBE participation is counted. AGC of America submitted detailed comments on the proposal as did 15 AGC chapters. In addition, more than 150 comment letters were submitted by individual AGC members. Given the volume of comments submitted it is unclear if and when DOT will issue a final rule. DOT has not given a target date for issuing a rule. AGC is seeking to have an open discussion with DOT before the new rules are issued. Work Zone Safety:  MAP-21 included an AGC-encouraged provision clarifying the use of positive barrier in highway work zones. DOT has scheduled a rule making in March of 2013. This rulemaking will ensure that positive protection measures and temporary longitudinal traffic barriers will be used in work zones in certain situations. It will also set forth a unit-pay basis for positive protection devices in most circumstances. Other MAP-21 Rules: MAP-21 made numerous changes in the administration of the federal-aid highway program and the transit program. These changes will be addressed through guidance and the more formal regulatory process. DOT directives on project delivery, performance measures and environmental streamlining are expected over the next few months. Environmental Protection Agency With a divided Congress remaining in place, action on the environmental side will most likely come from the regulatory front. Ongoing processes from last year will see incorporation of new stormwater runoff control requirements for construction sites – incorporated on a rolling basis into state permits as they expire and are renewed. In 2013, EPA is also likely to issue designations of nonattainment for fine particulate matter (PM2.5) that will have to be taken into account with National Ambient Air Quality Standards as they interact with implementation of state transportation plans. On the horizon, AGC expects early action on the water side, where EPA would initiate a rulemaking on federal clean water act jurisdiction and Section 404 permits. EPA is also expected to decide what to do with use and disposal of fly ash coal combustion waste. The Obama administration is likely to refocus on climate change, stepping up pressure for more rules restricting greenhouse gases. Beyond 2013, EPA is expected to continue use of the Chesapeake Bay program to reduce pollution runoff into the water shed and push for its use as a model for protection of other at-risk watersheds. AGC will also be monitoring EPA’s plans for a post-construction stormwater runoff rule that has currently been delayed and expansion of rules governing lead paint removal during renovation and repair. For more information, please contact Brian Deery at (703) 837-5319 or or Scott Berry at (703) 937-5321 or
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