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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.

��ѻ��ý 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 ��ѻ��ý 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, ��ѻ��ý’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, ��ѻ��ý 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.

The U.S. Environmental Protection Agency (EPA) has released a series of six fact sheets on incorporating green infrastructure measures into National Pollutant Discharge Elimination System wet weather programs.  The series builds upon existing EPA guidance and agreements to describe how EPA and state permitting and enforcement professionals can work with permittees to include green infrastructure measures as part of control programs.

��ѻ��ý of America is proud to announce the launch of its premier construction awards season with the 2013 ��ѻ��ý/Alliant Build America competition. For the past two years, ��ѻ��ý has seen an increase in the number of project entries. We hope to see more project entries from ��ѻ��ý member companies. Click here for additional information.