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Underground Construction
Copyright 2002 Gale Group Inc. All rights reserved. COPYRIGHT 2002 Oildom
Publishing Company of Texas, Inc.

Friday, February 1, 2002

ISSN 1092-8634; Volume 57; Issue 2

Busy year in Washington for underground construction issues: EPA continues
aggressive approach; C-MOM regs to be released soon. (Regulatory Outlook).
Stephen Barlas
Total number of pages for this article: 2 FULL TEXT

This year will probably be a busier year than normal for underground
construction issues in Washington. To start with, concern over the
dilapidated state of wastewater and drinking water infrastructure, which
has been simmering on the back burner for a number of years, is becoming
more politically insistent.

Although the Bush administration has been less regulatory-minded than
the Clinton administration in many areas, the Christie Todd Whitman
Environmental Protection Agency doesn't seem to be backing off its
policing of Clean Water Act violations by cities and counties whose
wastewater and drinking water system pipes are becoming sieves for
pollutants. Witness the jumbo fine levied against Baton Rouge, LA, in
November, a case that was started under Clinton and finished under Bush.
The settlement, which the Bush administration could have watered down
had they wanted to, forced Baton Rouge to spend somewhere between $330
and $451 million over 15 years to fix its underground pipes and sewage
collection system. There apparently won't be any backing off on the
city-by-city enforcement front.

Nor does the Whitman EPA seem inclined to dampen the Clinton effort on
the regulatory front. When Bush came in 2001, Whitman cancelled a
just-issued Clinton proposed rule on sanitary sewer overflows (SSOs).
The proposed rule was draconian. It revised the National Pollutant
Discharge Elimination System (NPDES) permit regulations to improve the
operation of municipal sanitary sewer collection systems, reduce the
frequency and occurrence of sewer overflows, and provide more effective
public notification when overflows do occur. A key aspect of the
proposal was language in its preamble. It gave communities limited
protection from enforcement in cases where overflows are caused by
factors beyond their reasonable control or severe natural conditions,
provided there are no feasible alternatives.

Alexandra Dunn, general counsel for the Association of Metropolitan
Sewer Agencies (AMSA), says Tracy Mehan, the assistant EPA administrator
for water, told her group that the proposed rule will be reissued early
in 2002. The preamble language giving municipalities some enforcement
breathing room will probably be made clearer. Dunn says cities that make
a good faith effort to correct problems won't be penalized. That same
position is backed by the Water Environment Federation (WEF). "We
strongly believe that an approach that acknowledges limitations and
addresses problems while promoting progress over time will result in a
more successful outcome," says Tim Williams, director of government
affairs at WEF.

EPA Stands Tough

But the EPA probably won't water down the technical aspects and
requirements in the Clinton SSO proposed rule since waste leakage from
sanitary sewers (as opposed to "combined" sewers which contain both
household waste and rainwater, which dilutes the toxic nature of the
sewer contents) is a combustible environmental issue. EPA estimates that
there are at least 40,000 overflows of sanitary sewers each year.

The bigger issue with regard to wastewater and drinking water
infrastructure is whether Congress will increase funding of the Clean
Water and Drinking Water State Revolving Funds (SRFs) which are the
chief federal funnels for infrastructure construction funds. Since 1989,
the Clean Water SRF has provided $33.6 billion in low interest loan
funding for over 9,500 individual projects, while the Drinking Water SRF
has provided $3.2 billion in assistance, both loans and grants, for over
1,500 projects in a little less than four years.

Water groups under the banner of the Water Infrastructure Network
(WIN) tried to convince Congress at the end of 2001 to break out of the
SRF mentality and create a new "no strings attached" grant program to
fund infrastructure repair. The idea was to add $5 billion to the
economic stimulus package Congress was considering. Paul Pinault,
executive director, Narragansett Bay Commission, told the Senate
Environment and Public Works Committee in October that the wastewater
SRF as currently structured and funded is becoming an out-dated
financing mechanism. "As the broad national benefits of improved water
services accrue, the number of people served by POTWs (publicly operated
treatment works) is rising, regulatory mandates are skyrocketing,
ratepayers' bills are continually increasing and infrastructure is
aging. During this same time, available funding options have been
narrowed to loans only while program eligibilities have been greatly
expanded. Local communities need a full range of funding options from an
improved EPA water infrastructure financing program. The current state
revolving fund program needs to be modernized."

But the same reason Congress declined to fork over the $5 billion
requested by the Water Infrastructure Network - i.e., the looming
federal budget deficit caused by the recession - will be the same reason
Congress undoubtedly declines to pony up huge new sums for the SRFs,
much less a new infrastructure grant program, which water groups such as
the Council of Infrastructure Financing Authorities (CIFA) oppose
anyway. Rick Farrell, executive director of CIFA, says, "Separate grant
programs not only complicate the funding process at the local level but
often also serve to delay project initiation because the prospect of a
grant diminishes the incentive to pursue other assistance such as a
state revolving fund loan."

Nor is the EPA a proponent of a new infrastructure grant program.
Tracy Mehan, the EPA assistant administrator, says, "Certainly, there
will be a continuing role for the Federal government in helping to meet
the challenge of extensive infrastructure investment needs, but it
cannot be the only solution." Instead of increasing federal funding of
the SRFs, Mehan thinks Congress should consider adding some of the
flexibilities of the Drinking Water SRF program to the Clean Water SRF
program and should extend the provision which allows states to transfer
funds between their Clean Water and Drinking Water SRFs.

OSHA Dropping Silica Regs

While the EPA will move forward on SSO regulations, the Bush
Occupational Safety and Health Administration (OSHA) has decided to drop
the Clinton-era regulatory proceeding dedicated to reducing the amount
of silica in the air in workplaces. Any new rule would have affected
companies doing digging and sandblasting. It is not that the Clinton
administration was moving particularly fast on the silica regulatory
front - it wasn't. But when the Bush administration published its first
regulatory agenda on Dec. 3, crystalline silica was listed in the
"long-term" regulatory action category. Translated that means "don't
hold your breath." OSHA won't be taking any action in 2002 toward
imposing any kind of regulatory requirement on employers. Bob Glenn,
president of the National Industrial Sand Association, who doubles as
chairman of the Silica Coalition, an industry group, says his coalition
has been meeting with building and construction trade unions in an
effort to agree on key elements of a new rule which OSHA could then
bless. Such an agreement would put the rulemaking back on track fast.
"We are not opposed to a standard as long as it is reasonable and
flexible," explains Glenn.

"Reasonable and flexible" - what a notion. If everything that comes out of Washington in 2002 fits that description, the underground construction industry will have far fewer headaches to worry about.

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