The U.S. EPA Administrator Lisa Jackson has directed the Office of Enforcement and Compliance Assurance (OECA) to examine its Clean Water Act enforcement program and report back to her in early October with an action plan to strengthen and improve the Agency's enforcement efforts.  This new initiative comes in light of information showing that water quality goals are not being met, there are too many violations in too many places, and the level of EPA enforcement is unacceptably low, according to Administrator Jackson's memo to key Agency officials.

AGC meet with OECA last week to discuss the National Pollutant Discharge Elimination System (NPDES) stormwater permit program and how it is enforced on construction jobsites.  AGC suggested positive incentives and expressed concerns about any potentially punitive measure; AGC plans to provide EPA staff with more detailed, written recommendations later this week.  In addition, AGC Chapters and members can help shape the future direction of EPA's national water enforcement program (and comment on EPA's current enforcement efforts) by participating in an online EPA discussion forum. 

The NPDES program under the federal Clean Water Act (CWA) regulates mostly stormwater discharges associated with municipal sewer systems, industrial activities and construction activities. (All facilities that discharge pollutants through a point source into waters of the United States are regulated by EPA and states under the NPDES program.)  If your construction activity disturbs one or more acres of land, you most likely need a permit to discharge stormwater runoff from your construction site, available from EPA's NPDES program or the state NPDES permitting authority. Additional information on the federal stormwater requirements is online at http://www.epa.gov/npdes/stormwater. You also can obtain information about state and local stormwater requirements through the Storm Water Resource Locator.

To clean up our nation's waters, Administrator Jackson's memo directs EPA OECA staff to devise a new action plan to achieve the following:

(1)   Make clean water enforcement information more transparent.  Administrator Jackson wants to "improve and enhance information that is available through the EPA Web site on compliance with the Clean Water Act and the level of enforcement activity in each state… [including] performance of individual businesses as well as state and national performance."

(2)   Raise the bar for clean water enforcement performance.  The Administrator wants to bring strong, consistent and effective enforcement actions against those who violate the Clean Water Act.  She has asked EPA staff to "boost [their] enforcement presence."

(3)   Launch a major shift of EPA's clean water information systems.  The Administrator wants data on facilities' discharges and their compliance status to be available to "federal and state regulators and the public, over the web, [and] on a real-time basis."  For example, the Enforcement and Compliance History Online (ECHO) Web site displays inspection and enforcement information for various permitted dischargers under the Clean Water Act.   But it only reflects compliance and enforcement records that local, state and federal entities have entered into the federal database. 

More information on the development of the clean water enforcement action plan is online at http://www.epa.gov/compliance/civil/cwa/cwaenfplan.html or contact EPA's Deb Berlin, berlin.deb@epa.gov, (202) 564-4914.

AGC anticipates that a large number of water infrastructure projects funded with EPA "Stimulus" funds will hit the streets in September and October.  According to the EPA, significant progress is being made processing assistance agreements with state water authorities, which will likely translate into contracts very soon. As we reported in the August edition of the Pipeline, official reports from EPA were dismal in terms of actual dollars translating into contracts. This situation seems to be improving and while full project data will not be available from the states until October, EPA has shared that almost 400 projects have received assistance agreements for approximately $672 million. 

Assistance agreements are required for projects to proceed to the bidding stage.  So far, 94 projects receiving funds through the Clean Water SRF have completed contracts for all funds and 83 are under construction. Forty-nine drinking water projects have completed contracts and 48 are under construction. By EPA's estimates, most states are doubling the impact of ARRA SRF dollars.

EPA continues to deal with new "Buy American" requirements and has released several more waivers, including an updated version of the nationwide de minimus waiver originally issued on June 2, 2009. The waiver was given for "de minimis incidental components," which are minor, or small-scale components that "cumulatively comprise no more than a total of 5 percent of the total cost of the materials used in and incorporated" into eligible water infrastructure projects funded by the ARRA. According to EPA, every water infrastructure project involves the use of "thousands of miscellaneous, generally low-cost components that are essential for, but incidental to, the construction and are incorporated into the physical structure of the project, such as nuts, bolts, other fasteners, tubing, gaskets, etc." EPA said it "is not in the public interest" to impose ARRA's Buy American requirements, as outlined in Section 1605 of the stimulus law, on these de minimis components. 

This updated version, released August 11, 2009, revises the terms under which that waiver may be applied; specifically it repeals the need to identify both the country of origin and possible alternatives for these incidental components. EPA reasoned that for many of these components, "the country of manufacture and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business." The new terms of this waiver are effective as of July 24, 2009. 

EPA regional offices continue to issue project-specific waivers, including 4 national categorical and 9 project specific waivers through EPA Regional offices. The latest waivers of the Buy American provisions were granted for projects in Vermont and New Hampshire for advanced U.V. and sludge treatment technologies. 

Individual projects must apply for a separate waivers based on project-specific circumstances even if waivers have already been granted for specific materials or equipment. EPA has left the door open for additional national waivers and according to EPA officials no waiver requests have been rejected to date. For the entire list of waivers issued to date click here. 

For more information on EPA Buy American requirements, including EPA webcasts, please click here.

For additional information, please contact Perry L. Fowler at fowlerp@agc.org or (703)837-5321.

The Common Ground Alliance (CGA), a partner of AGC, is the nation's leading organization focused on protecting underground utility lines and the safety of people who dig near them. On August 25, 2009, CGA announced findings from its comprehensive 2008 Damage Information Reporting Tool (DIRT) Report. The estimated total number of underground utility damages occurring in the U.S. in 2008 has decreased to 200,000 from the 2004 and 2007 estimates of 450,000 and 256,000 respectively. 

The total number of events submitted for 2008 was 135,521, which represents facility damages, near misses and/or downtime incurred. The number of event submissions increased for the fifth consecutive year, which is indicative of broader support for voluntary data submission into DIRT. Several stakeholder groups currently submit data to DIRT as listed below. 

• Natural Gas, 41 percent
• One Call Center, 27 percent
• Telecommunication, 23 percent
• Excavator, 3 percent
• Electric, 3 percent
• Other 3, percent  

Of the total number of incidents reported in 2008, more than half (73,152) had a known root cause, and were identified as follows: 

• Notification not made, 37 percent
• Excavation practices not sufficient, 37 percent
• Locating practices not sufficient, 22 percent
• Notification practices not sufficient, 3 percent
• Miscellaneous root cause, 1 percent

Reported damages with "Notification not made" as the root cause are down to 37 percent from 48 percent in 2004, the year when DIRT submissions began. "Notification not made" was identified as the root cause in some 200,000 damages in 2004. That number was approximately 75,000 in 2008. More than ever, homeowners are calling their one call centers prior to beginning projects on their properties. The implementation of "811" in May 2007 has had a positive impact on the calling process.

"This year's DIRT Report enables us to take a more comprehensive look at the progress being made in underground damage prevention efforts throughout North America," said Bob Kipp, President of CGA. "With this data we are able to uncover important trends and also see the positive impact the implementation of 811, in May 2007, has had on reducing utility damages, specifically those caused by the failure to contact a one-call center before digging."

The DIRT Report was created as part of CGA's continuing mission to identify the contributing factors and root causes of underground utility damages and near misses, with the ultimate goal of reducing the occurrence of these incidents in the future.

The complete DIRT Annual Report for 2008 is available for download at www.commongroundalliance.com, and stakeholders interested in submitting data to the 2009 report or establishing a Virtual Private Dirt account should visit the DIRT site at www.cga-dirt.com.

For additional information please contact Perry L. Fowler at fowlerp@agc.org or (703) 837-5321.

Join your AGC colleagues at the PGA National Resort and Spa in Palm Beach Gardens, Florida for the AGC Highway & Utilities Contractors Issues Meeting. This meeting is the premier national event for contractors and related businesses involved in every aspect of highway and utility construction to hear about and discuss issues and trends in these markets. The hotel is only $179.00/night, which includes the resort fee. The cutoff date for hotel reservation is Friday, October 16, so don't miss out on your chance to attend.

New to this year's conference, we will offer separate Utility and Highway tracks that will converge with issues that affect both highway and utility contractors. Agenda highlights include:

Friday - November 13, 2009

Joint Meeting

• Washington Outlook: SAFETEA-LU Reauthorization, Clean Water Trust Fund and other pending legislation
• How Recent Court Decisions Will Impact Your Business
• Green Infrastructure: What Does Green Mean for the Future of Highway & Utility Construction?

Municipal and Utilities Track:

• Water Supply Impacting State Priorities for Construction & Design of Utilities
• Financing Water Infrastructure, Panel Discussion with State Finance Experts and Water Authorities
• Increasing Use of Alternative Project Delivery Methods: Panel Discussion with Expert Construction and Engineering Practitioners

Highway and Transportation Track:

• Alternative Bidding Asphalt vs. Concrete: Missouri's Formula
• Florida's Experience with Alternative Project Delivery
• Market Potential of High Speed Rail
• AGC's New Highway Worker Safety Program

Saturday - November 14, 2009

Joint Meeting

• Virtual Design for Horizontal Construction Projects: Software Capabilities
• Virtual Design for Horizontal Construction Projects: Equipment Interfaces
• Virtual Design for Horizontal Construction Projects: Case Studies
• What Does the Future Hold for Public-Private Partnerships?
• Ritchie Brothers Golf Tournament

Click here for registration, travel and hotel information.

For additional information please contact Perry L. Fowler at fowlerp@agc.org or (703) 837-5321.