The U.S. Environmental Protection Agency’s (EPA) final rule to regulate certain per- and polyfluoroalkyl substances (PFAS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund as it is more commonly known) has cleared the interagency review process. Completion of this step signals that EPA is very close to issuing the new rule. AGC has long discussed risk exposures for contractors associated with this regulatory approach: where contractors encounter these chemicals in earthmoving or dewatering activities. Most recently, AGC raised these concerns to the U.S. Senate Committee on Environment and Public Works as they considered possible implications of EPA’s forthcoming rule at a March 2024 hearing. Construction companies, along with several other industries, are at risk of litigation for contamination not originating with them. Many groups, like AGC, are asking Congress to step in to protect innocent parties from liability---provisions that the law currently does not provide.

On April 9, AGC and its coalition partners responded to a U.S. Army Corps of Engineers (Corps) proposal to revoke its agency-specific procedures (called “Appendix C”) for the protection of historic properties under Section 106 of the National Historic Preservation Act (NHPA) within the Corps’ permitting program. The Corps proposes instead to implement the NHPA through forthcoming guidance. AGC urges the Corps to retain the longstanding Appendix C process to safeguard public input through notice and comment rulemaking. Appendix C helps to streamline the NHPA and ensures that the scope of the Corps’ review of a project stays within the bounds of its narrow legal jurisdiction.

New funding opportunities for water systems available

A Kentucky federal court—in line with AGC litigation support—agrees with an earlier Texas court ruling striking down a FHWA regulation that would have diverted federal-aid highway construction funding to more non-construction uses, like the purchase of buses, Amtrak cars, and EV charging stations.

AGC-backed federal Clean Water Act permit streamlining package benefiting many construction projects passes the House, but faces resistance from the White House and Senate that are focused on limiting permitting reforms to just clean energy projects.

A Texas federal court strikes down a FHWA regulation—in line with AGC litigation support—that would have diverted federal-aid highway construction funding to more non-construction uses, like the purchase of buses, Amtrak cars, and EV charging stations.

In the weeks following the U.S. Environmental Protection Agency (EPA) action to lower the primary annual air quality standard by 25 percent for fine particulate matter or PM2.5 (see AGC article), multiple states have taken legal action and both chambers of Congress have initiated AGC-supported resolutions against the rule.

Report, Titled “AGC for All” Catalogues Association’s Accomplishments During the Past Year

Rule Implementation on Hold Due to Litigation

The U.S. Securities and Exchange Commission (SEC) announced that the Commission will meet on Wednesday, March 6 to vote on its proposed rule for public companies to disclose climate-related information in their registration statements and annual reports. Multiple news sources have reported that the final version may not be as expansive as the SEC proposed in 2022. The SEC originally proposed expanding disclosure requirements to include direct and indirect greenhouse gas (GHG) emissions as well as the emissions related to the supply chain (so-called “Scope 3 emissions”), if material. The supply chain provision- reportedly absent from the final rule- would have caused many more project owners to require climate-related documentation from general contractors and suppliers. AGC provided preliminary feedback in 2021 and commented on the proposal in 2022. If the reports are accurate that mandatory supply chain climate-related disclosures are absent from the final rule, this would be a considerable improvement over the original proposal, and in line with AGC’s recommendations.