The U.S. EPA and the U.S. Army Corps of Engineers issued a prepublication version of 40 CFR 230.3 on May 27, 2015. This new rule provides a revised definition of “Waters of the United States” which will significantly expand the authority of these federal agencies to regulate wetlands, streams, ponds, lakes, and other waters in the United States. The new rule has not yet been published in the Federal Register and will become law 60 days after it is published.
The new definition of “Waters of the United States” appears to be overwhelmingly opposed by the U.S. Congress and both House and Senate bills have been proposed to stop or modify the new rule. However President Obama has indicated he will veto the legislation. Opposition also includes many states and industrial and commercial trade associations. Mike DeWine, the Ohio Attorney General, submitted a detailed letter to the Administrator of the U.S. EPA late last year opposing the new rule and many other states and trade associations have done the same. The new rule will also likely be the subject of a court challenge as soon as it becomes effective and the 2016 Presidential election and the U.S. Supreme Court will likely play major roles in the future of this issue.
The U.S. EPA claims that it now has the right to regulate any water in a 100-year floodplain of a navigable water, any water that is 4,000 feet from a tributary, and any pond or wetland they have declared a “regional water treasure,” if it can identify a “significant nexus” with a navigable water. The U.S. EPA defines “significant nexus” so broadly that this test can be met in almost every instance. If the U.S. EPA shows that a pond or wetland holds water, they can regulate it. If the U.S. EPA shows that a pond or wetland seeps into the ground to an aquifer that feeds a stream or river miles away, they can regulate it. And, if the U.S, EPA can show that a pond or wetland provides “life cycle dependent aquatic habitat for a species” that spends part of its time in a navigable water, they can regulate it. The “water” that the U.S. EPA can regulate does not even have to be wet. It is also defined by “chemical, physical, and biological indicators.”
The proposed rule will expand the definition of “Waters of the United States” to include “adjacent waters” which could potentially include the location where you are washing concrete truck mixer drums and placing returned concrete even if there is no discharge to the adjacent waters. The term “adjacent” means bordering, contiguous, or neighboring navigable waters, interstate waters and wetlands, territorial seas, and tributaries including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like.
While I do not know what the future will bring, I do have a few recommendations for you to consider. I recommend all truck washout be performed in a properly designed wash water recycling system or containment area that has no outlet to surface water. Waste treatment systems including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act and wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; and water distributary structures built for wastewater recycling are specifically exempted. I also recommend that returned concrete and other fill placed at your properties be placed on dry ground and not be used to fill a pond, quarry lake or other depression that may contain a wetland or have periodic wet conditions. You should also consider having a wetland scientist perform an evaluation of your sites and site operations to determine what areas may be subject to federal regulation and the steps you can take to minimize the potential for future liability.
Contact Ohio Concrete at (614) 891-0210 or R. Curtis Spence, P.E. with Spence Environmental Consulting, Inc. at (614) 837-4750 if you have questions or would like additional information regarding this issue.
“This rule will save lives of construction workers. Unlike most general industry worksites, construction sites are continually evolving, with the number and characteristics of confined spaces changing as work progresses. This rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health.”- Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels.
Essentially the rule requires employers to determine what kinds of spaces their workers are in, what hazards could be there, how those hazards should be made safe, what training workers should receive, and how to rescue those workers if anything goes wrong.
For more information on the construction industry confined space rule changes visit OSHA’s website or contact Gary Hanson, President, American Safety & Health Management Consultants, Inc. at firstname.lastname@example.org or call (330)854-4577.