Changes Coming Thick and Fast from “Activist” EPA

Is the federal Environmental Protection Agency (EPA) close to creating, by coincidence, a perfect regulatory storm that could affect highway and bridge work across the country?

The agency is working on new standards and regulations in several areas, including

*Ozone

*Particulate Matter (PM) aka “Soot”

*Nitrogen Oxides (NOx)

*Coal Ash

*Stormwater

A potential worry, according to Nick Goldstein, the American Road and Transportation Builders’ Association (ARTBA) vice president of environmental and regulatory affairs, is not so much that any one of these could prove tough to meet but they might all arrive at roughly the same time. All may be complete by spring.

“New regulations are on the way, so are changes to existing laws,” says Goldstein. “This is one of the most activist EPAs in history.”

While the EPA is working on each subject separately in what we might call a silo pattern, the cumulative effect of a series of new standards coming online could be a huge hurdle for contractors. It could also put government agencies in a bad place. For example, according to Goldstein, new EPA ozone standards in the pipeline could lead to 96-percent nonattainment, a scenario where counties fail to meet the standards. Only Montana would have every county compliant. With PM, many would also be noncompliant, possibly at very nearly the same time.

The EPA proposal to tighten PM standards amounts to “moving the goal posts in the middle of the game” and could jeopardize state highway safety improvements Goldstein told the EPA Clean Air Scientific Advisory Committee hearing back in August.

Further tightening of PM standards would jeopardize highway funding to state and local agencies by placing these areas out of compliance with the federal Clean Air Act (CAA), Goldstein told the committee. Agencies out of compliance are at risk of losing federal highway funding, which supports projects designed to improve road safety, reduce traffic congestion and improve air quality — a move that would have unintended consequences and be contrary to other public policies.

Even an EPA that was aware of what might happen and reluctant to proceed might have little choice if prodded by public pressure that new standards be implemented.

Changes in stormwater regulations are also possible, and here Goldstein’s concern is that they may add to potential liability problems for contractors. Again, the point is not so much that changes may be coming but that they may arrive, and have to be handled by contractors, at a time when other regulations are also being introduced.

An EPA proposal which could regulate coal ash as a “hazardous waste” (it could also choose not to do this) could make concrete more expensive and less durable, thus increasing the costs and environmental footprint of key transportation improvement projects, Goldstein told another EPA hearing in August.

“EPA could put an end to an environmental success story,” says Goldstein.

“Every element of the transportation construction process, from the suppliers of concrete to the contractors who handle construction materials, would be affected by the stigma of a ‘hazardous waste’ label for coal ash. Specifically, because of the increased expense of handling a hazardous waste, the producers of coal ash would be resistant to continue providing it to concrete manufacturers.”

The transportation sector’s use of coal ash has been an environmental success story, Goldstein says. “According to EPA’s own data, coal ash accounts for between 15 and 30 percent of the cement in concrete. Further, EPA has noted using coal ash at this level results in annual greenhouse gas reductions in concrete production of between 12.5 and 25 million tons, and an annual reduction in oil consumption between 26.8 and 53.6 million barrels.

Goldstein told EPA officials that on four separate occasions, in 1988, 1993, 1999 and 2000, the agency found that coal ash did not warrant regulation as a “hazardous” waste. He said there has been no new scientific information presented since these prior reviews that would warrant EPA’s reaching a different conclusion now.v

In 2008 alone, more than 12.5 million tons of coal ash was used in the production of concrete, including: