AGC and the staff of the California Air Resources Board have reached an agreement on proposed changes to the state's off-road diesel rule designed to give the local construction industry time to recover from the recession while protecting air quality.

As part of the agreement, CARB will delay enforcement of the rule until 2014, ease annual compliance requirements and give contractors greatly flexibility in how they can comply. The proposed changes, which will need approval from the board in December, are the result of AGC's successful efforts to identify significant flaws in the Board's original diesel emissions estimates.

Read the press release here. Listen to the media conference call for details on the agreement.

EPA Administrator Lisa Jackson has declared the cement-lined Los Angeles river as "navigable," allowing her agency to enforce Clean Water Act protections throughout the river's 834-square-mile watershed.

Recent Supreme Court rulings have strictly interpreted "navigable" as the means of determining which water bodies deserve federal regulatory protections aimed at limiting industrial discharges and protecting wetlands.

Repeated efforts by Democrats in Congress to strike the word "navigable" from the Clean Water Act and expand federal regulatory power have failed in the face of intense opposition from agricultural and other industry opponents. The most recent effort appears stalled.

The L.A. River's new designation represents a dramatic change from two years ago, when the Army Corps of Engineers proposed declaring limited stretches of the river navigable.

Confusion over what waters should be deemed "navigable" stems from two Supreme Court decisions — Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006.

EPA sources report the agency is currently looking at another river, the Santa Cruz in Arizona, to evaluate its legal status as a "traditional navigable water."

AGC will continue to monitor these efforts by EPA and oppose legislative efforts to expand the reach of the Clean Water Act in this manner.

The U.S. Senate is expected to vote this month on a resolution this month that would block the U.S. Environmental Protection Agency (EPA) from regulating greenhouse gases under the Clean Air Act.  AGC is concerned that Clean Air Act regulation of greenhouse gases would delay or stop construction projects nationwide.

S. J. Res. 26 was introduced by Senator Lisa Murkowski (R-Alaska) in response to EPA's effort to regulate greenhouse gases from motor vehicles that then trigger requirements for emission controls from all other sources, including commercial buildings, industrial facilities, and more.   

EPA regulation under the Clean Air Act means more pre-construction permits, operating permits, and costly technology control installation requirements for building projects, and puts approval and federal funding for highway and bridge projects at risk.  It also means higher energy process for businesses and consumers that will affect demand for construction services nationwide, especially in a down economy. 

AGC urges all members to contact their Senators in support of Senator Murkowski's resolution.  To send a message to your Senators, you can use AGC's Legislative Action Center by clicking here.

Last week, the California Air Resources Board admitted that its earlier estimates of the emissions from the off-road diesel equipment in California were too high, and in light of both its mistakes and the downturn in the economy, agreed to amend its costly off-road rule. 

This action followed AGC's release of its own study of such emissions, where AGC found that the Board's original estimates exceeded actual emissions by at least 350 percent.  AGC also found and announced that - in the absence of any off-road rule - the construction and other regulated industries will exceed the Board's goals for emissions of particulate matter (PM) and nitrogen oxides (NOx) through 2020 and 2025, respectively.

How dramatically the Board will change the rule remains to be seen.  While it admitted to making a mistake, the Board maintained that it had overestimated emissions by no more than 100 percent, and did not make any specific commitments.  It did, however, agree to consider the following:

• Greater reliance on turnover to Tier IV equipment (which will not become available in the higher horsepower equipment until 2015) to improve air quality;
• While maintaining the structure of the current rule, streamlining its requirements;
• Providing some additional delay in the enforcement of the rule (which the Board has already agreed to stay until the U.S Environmental Protection Agency gives the Board the legal authority to enforce it);
• Reducing the retrofit, repower and replacement requirements that would otherwise take effect before 2015; and
• Classifying more vehicles as low use, and therefore exempt from the rule.

The Board also sought to reassure the contractors that have already complied with the rule, indicating that it will give these contractors credit for anything they have already done to reduce their emissions.

AGC of America and both of its California Chapters will continue to monitor the situation carefully.  AGC has already asked the Board to delay all of the requirements for retrofitting, repowering, replacing or retiring existing equipment until 2015, and to eliminate all of the requirements specifically for NOx.   At this point, it remains far from clear that the Board is willing to go that far.  On the other hand, AGC has yet to review or comment on ways that the Board estimated the size of its earlier mistake, or to hold any follow-up discussions with the decision makers.

The US Environmental Protection Agency (EPA) has scheduled a hearing for April 14 in Washington to consider the California Air Resources Board's (CARB) request for a waiver to allow it to begin enforcing its off-road diesel equipment rule. The rule was originally scheduled to go into effect on March 1, 2010 but EPA never granted approval to CARB to move ahead with enforcement. AGC is preparing expert witness testimony asking EPA to deny California's request.

This EPA action follows closely on the heels of a public hearing held by CARB on March 11 on the question of whether the off-road regulations should be further modified to account for the down economy and subsequent emissions reductions. AGC presented CARB with substantial empirical data demonstrating that the downturn in California's economic conditions and the resulting drop in construction activity have made the rule unnecessary. AGC has pointed out that California's own inventory data makes clear that off-road equipment operators will be well under the state's aggressive diesel emissions limits for years to come without this rule.  AGC will make similar recommendations at the upcoming EPA hearing.

Unless blocked, the CARB rule will require California's contractors to retrofit, repower, retire and/or replace much of their off-road equipment. The Federal Clean Air Act grants unique authority to California to adopt its own clean air rules, including an off road diesel emissions rule. Other states are prohibited from developing their own regulations but may adopt California's rules once EPA has approved them.  A study conducted by AGC shows that 32 states, including Arizona, Georgia, Illinois, Maryland, New York, Pennsylvania and Texas, are poised to use the California requirements. Because of the impact on contractor's nationwide, AGC joined with the AGC of California and San Diego AGC Chapter in a collective effort to stop the rule or significantly modify it.

AGC joined members of the Waters Advocacy Coalition (WAC) Wednesday in a letter to the editor of The New York Times in response to an article the newspaper published March 1. The article addressed concerns with water and wetland protection under the Clean Water Act following two Supreme Court decisions over the last decade. 

The New York Times article reports that WAC, of which AGC is a founding member, has used scare tactics to block consideration of the Clean Water Restoration Act, which its proponents claim would restore federal jurisdiction over waters and wetlands they believe have been lost due to the Supreme Court's rulings. 

WAC's letter to the editor responds to this mischaracterization by stating that WAC fully supports the Clean Water Act and its implementation to protect waters and wetlands, and that WAC's concerns with the Clean Water Restoration Act (CWRA) are valid and based on the explicit language of the bill.  The bill would grant EPA and the Corps virtually unlimited regulatory control over all "intrastate waters" - essentially all wet areas within a state, including groundwater, ditches, pipes, streets, gutters and desert features.

AGC and the Clean Air Task Force (CATF) today announced that the two organizations have agreed on principles to require reductions in diesel emissions from federally-funded transportation projects via contract change orders that cover 100 percent of the costs to retrofit equipment.  CATF represents leading environmental groups and targets diesel emissions reductions nationwide. 

Under the set of "Clean Construction Principles," states would first require successful bidders for federally-funded transportation projects to identify the off-road diesel equipment they plan to use on designated projects.  States would give priority to projects located in areas with poor air quality.  After exploring EPA-approved options for reducing diesel emissions, states would issue change orders requiring contractors to pursue the best of those options.   The change orders would entitle contractors to recover 100 percent of their costs. 

AGC and CATF have been working with Congressman John Hall (D-N.Y.) to turn these principles into a legislative proposal that the Congressman will pursue as an amendment to the surface transportation reauthorization bill.  Funding to cover the cost of the change orders would be designated in the bill. 

The announcement was covered by Greenwire/New York Times. To view a copy of the "Clean Construction Principles" click here.

U.S. EPA Administrator Lisa Jackson appeared before the House Transportation and Infrastructure Committee today to discuss the Clean Water Act and EPA's intention to increase efforts to undertake enforcement actions under the Act. In her testimony to the Committee, Administrator Jackson noted that EPA is "reexamining its approach to enforcing the Clean Water Act permit program to address water pollution challenges of this century." Jackson specifically noted that recipients of National Pollutant Discharge Elimination System (NPDES) permits, including construction sites, wastewater treatment plants, mining, manufacturing facilities and additional industries, such as agriculture, would be targets of increased CWA enforcement by EPA. Administrator Jackson also indicated that the EPA formally released their "Clean Water Act Enforcement Plan" which is available on the EPA Web site.

Administrator Jackson said about S. 787, the Clean Water Restoration Act,  that the Obama Administration believes that Congress can bring more clarity to permitting issues. Chairman Oberstar noted that he had not introduced companion legislation to S.787 yet. 

Several Committee members expressed concerns about removing the term "navigable" from the Clean Water, which the bill would do.  AGC has actively opposed this legislation because it would give EPA and the Corps jurisdiction over all wet areas - however remote or intermittent. At a recent hearing before the Small Business Panel on Waters and Wetlands Regulations, AGC testified that the bill would require construction contractors and project owners to obtain and be regulated by federal Clean Water Act permits far more frequently than is currently required. 

Administrator Jackson was also asked about the Obama Administration's position on the creation of a Clean Water Trust Fund.  Jackson indicated that the Obama Administration did not have a position for or against the "Trust Fund," but acknowledged that there was a major gap in the current investment in clean water infrastructure. 

AGC has been involved in direct talks with the EPA's enforcement arm, the Office of Enforcement and Compliance Assistance (OECA), and will continue to engage in discussions with EPA and the T&I Committee to ensure that the construction industry's concerns are heard and that EPA efforts include increased compliance assistance and industry outreach, in addition to increased enforcement actions.

To view Administrator Jackson's and other testimony, as well as video of the hearing, click here.

Trey Pebley, Vice President of McAllen Construction, Inc., of McAllen, Texas, testified Wednesday before the House Small Business Committee on the impact of federal regulation over water and wetlands on small businesses and family farmers.The Committee conducted the hearing to gather testimony on the impact of legislative efforts to remove the term "navigable waters" from the Clean Water Act. Pebley, an elected Trustee of the McAllen Public Utilities Board, explained to the Committee that such a legislative change would fundamentally expand federal jurisdiction under the Clean Water Act to include all waters and wetlands and would increase the need for federal discharge permits (i.e., Section 404 permits).

Pebley also expressed concern that a bill called the Clean Water Restoration Act would also extend federal jurisdiction over groundwater, as well as all surface waters. If the bill were enacted, underground contractors, could be required to obtain a federal permit for every project.

Pebley reiterated AGC's commitment to water quality and the protection of public health and welfare as builders. However, he continued that the federal reach over waters and wetlands should have a limit and that states and local governments are best equipped to look after their water and land use. To provide the long sought-after clarity that the construction industry needs to comply with the existing complex regulatory process, the U.S. Corps of Engineers and the Environmental Protection Agency should conduct an administrative rulemaking to define crucial terms to delineate federal jurisdiction, Pebley added.

Last month, the Senate Environment and Public Works Committee approved its version of the Clean Water Restoration Act, S. 787, with a so-called "compromise" amendment. As the amended legislation would still fundamentally expand federal jurisdiction over all waters and wetlands, AGC opposes the bill.

To contact your Senators to oppose S 787, use AGC’s Legislative Action Center.

To view a copy of Pebley’s written statement to the House Small Business Committee, click here.

The U.S. House of Representatives is scheduled to vote Friday on the American Clean Energy and Security Act (ACES), a bill that would require "cap and trade" and other regulatory schemes to reduce greenhouse gas emissions (GHG) from stationary and mobile sources.  AGC supports reasonable climate change policies that would reduce GHG emissions while maintaining the competitiveness of U.S. companies in the global marketplace.  While there may be opportunities for the construction industry under the bill to contribute towards building a clean energy economy, on the whole, AGC believes that the bill as it is currently drafted would increase the cost of construction, discourage investment in our economy and impact our ability to meet the infrastructure and mobility needs for a growing population.  AGC sent a letter to Capitol Hill June 25 in opposition to ACES as currently drafted.

AGC urges all members and Chapters to weigh in with their Representatives and urge them to oppose the bill.  For more information and to send a letter to your Representative, please use AGC's Legislative Action Center.