Last summer I wrote about EPA’s proposed rule on Construction General Permit (CGP) and the ridiculous requirements about testing for PCBs from caulk in all demolition debris. The EPA had, perhaps with good intention, over-reached, because PCB in demolition debris is really quite rare. The CGP is a rule designed to address stormwater protection. EPA has legitimate authority and duty to address stormwater.
I commend EPA staff for correcting that misstep in the final regulation by fixing the PCB in demolition debris language. Their work did no harm to the rule. They have focused the attention where it should be focused. However, there is still a serious flaw with the rule. The flaw has nothing to do with EPA’s environmental standard—which I don’t question. We need to regulate industries responsibly to protect streams.
The problem with the EPA’s Jan. 19, 2017 rule (literally the last day of the Obama Administration) is that it applies joint and several liability to those in the industry for those engaged in earth moving activities. This EPA final rule is a big change from the 2008 and 2012 permit language that limits each operator’s liability to that portion of the site over which he or she had control. I think EPA went way too far in placing joint and several liability into the construction industry that often has many dozens of contractors and businesses. Just think about it. With joint and several liability, who would want to be the “last in” in the construction industry to build a home or building in a project that is adjacent to other construction. A construction company, that did no harm and followed the new stormwater protection regulations perfectly, could possibly be liable for another company’s errors (intentional or unintentional) for up to $52,500 a day. It could also ruin a home builder’s reputation if he/she had to pay fines for someone else’s bad judgment. Joint and several liability will surely send a chill through the construction industry—at the very time we are all talking about the need to get our national economic growth far more robust.
Just think—would you want to be financially responsible for remodeling your own home if you were held responsible for a neighbor’s home remodel if that neighbor didn’t follow all appropriate code? You don’t have the right to enter that home before you decide to remodel your house. You’d have no clue what they did or didn’t do in their home remodel.
The Trump Administration has an opportunity to further refine the stormwater regulation or CGP rule. I hope they will do so very soon. The new CGP permit took effect last week—on Feb. 16, 2017. It is my hope that they will apply the Priebus Memo and take a look at the CGP and fix the joint and several liability portion of the CGP rule. There is a commonsense solution that limits liability to a bad actor and encourages construction projects to continue.
We need both—more jobs and continued stormwater protection. Reasonable steps by EPA can do both.