Emission Standards Exhaust Patience

Article December 28, 2000
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Municipalities, states and all segments of the highway
construction industry are coming forth in opposition to more
stringent ozone and particulate emission standards being
proposed by the Environmental Protection Agency (EPA), and
rightly so.

Although research on the proposed standards is
said to have been conducted for more than three years, it was
interesting timing that the proposal was sent to the White House
only days after the presidential election last November, and at
a time when Republican leaders, such as Newt Gingrich, were
keeping a low profile. Could it be that after a couple of years
of keeping a low profile themselves the environmentalists saw
this as the time to burst back onto the scene?

Currently,
the ozone standard allows a one-hour level of 0.12 parts per
million. The proposal would tighten the standard to an
eight-hour level of 0.08 parts per million.

There is no
current standard for the new fine particulate matter proposal.
The proposal would regulate the discharge of fine particulate
matter (PM) that are 2.5 micrometers or less in diameter
(PM-2.5). This would apply to concentrations of 15 micrograms
per cu ft annually and 50 micrograms per cu m daily. The current
PM standard regulates particles the size of 10 microns or
smaller (PM-10) in concentrations of 50 micrograms per cu ft
annually, and 150 micrograms per cu m daily.

Questions
abound about the necessity of the new standards, the manner in
which they were arrived at, and their cost versus benefit
derived. Many areas of the country are struggling to conform to
the standards that exist today. Increasing the number of
nonattainment areas only will put that many more areas at risk
of incurring highway funding sanctions, thus further limiting
our industry's ability to provide the motoring public with
increased mobility and less congestion and pollution.

While
projections of the increase in the number of areas that would be
in nonattainment differ, the increases would be significant.
According to AASHTO, the Environmental Analysis Branch of the
Federal Highway Administration (FHWA) estimates that the number
of areas in nonattainment of the PM-10 standard would increase
from 41 to 168 with the new standard. According to the American
Petroleum Institute, the number would increase to 507. According
to FHWA, areas in nonattainment of the proposed ozone standard
would increase from 106 to 355.

Even typically supportive
members of Congress realize that EPA has gone too far, too fast.
According to AASHTO, in February, Sen. John Chafee (R-RI),
chairman of the Environmental and Public Works Committee, warned
that a public backlash could be expected if the new standards
were implemented. "If you push this thing too far, too fast
there are going to be steps taken by the American public," he
said.

Even bad ol' advocates of a safer, better maintained
and more efficient highway infrastructure want our children to
breathe clean air. Laws regulating clean air have their merits,
but they must be created with careful consideration not only of
their benefits, but of the consequences that might result in a
lowering of everyone's quality of life. EndArticle

Publication:1
PubDate:05-01-97
Pagenumber:12
Category1:Law: The Contractor's Side
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Title:The "Pros" of Design-Build Construction
Subhead:A lawyer's view of legal issues affecting the roadbuilding industry
Abstract:
ByLine:Cordell Parvin
Content:
BeginArticle
In my December '96 and January '97 columns, I
discussed the design-build approach to construction of
transportation projects. The interest of DOTs in that approach
was discussed during the recent American Road & Transportation
Builders Association Convention. I was asked by the Contractors
Division to make a presentation on why the design-build approach
was being used in the highway construction field and what
contractors should do to live with it. It was clear from the
contractors who attended the meeting that the majority would
prefer to never have to deal with design-build. With these
negative feelings from contractors, why have some public owners
gone to the design-build method for construction of highway
projects? I believe the design-build method is being used in the
transportation construction industry because of the following:

-- Public owner resource constraints in the face of
changing, interrelated technologies and new financing
arrangements, and

-- Perceived potential for cost and time
savings with improved overall quality.

Resource-friendly

Design-build projects theoretically permit owners to take
advantage of the potential time and cost savings offered by the
process while integrating new technologies and taking advantage
of new financing arrangements with reduced internal resources
required.

Many state DOTs have been forced to downsize their
workforces. Through early retirements, many senior-level
designers and project engineers are no longer employed by their
respective DOTs. As a result, many state DOTs no longer have the
internal resources to furnish design and project inspection
services with the same consistency as they have done in the
past.

Under the design-build model, the design-builder
largely assumes responsibility for the design and has
significant QC/QA responsibilities. New technologies and
financing options also are affecting how DOTs build projects.
For example, intelligent transportation systems (ITS) require
special computer, finance, technological, and integration skills
to implement. Some DOTs find it easier to procure ITS projects
through design-build with a detailed set of performance
specifications, rather than through traditional methods using
design specifications.

Financing, like technologies, may
play a role in a DOT selecting the design-build method. Clearly,
states are seeking creative ways to finance the construction of
needed projects. Some states have enacted public-private
financing legislation that provides for submission of original,
unsolicited proposals for infrastructure construction. For
instance, in Virginia, under the Public-Private Transportation
Act of 1995, the Commonwealth of Virginia may entertain
proposals related to any "transportation facility," which
includes any road, bridge, tunnel, overpass, ferry, airport,
mass transit facility, vehicle parking facility, or similar
commercial facility used for the transportation of persons or
goods, together with any other property that is needed to
operate the transportation facility, subject to certain
exclusions.

Time and quality

In addition to allowing for
construction progress in the face of reduced DOT resources, the
use of design-build is perceived to reduce the cost and time
required to construct a given project while, at the same time,
improve the quality of the final product. Many in the industry
believe that when the designer and contractor work closely
together as a team to evaluate construction alternatives,
perform value engineering, and consider constructibility issues
during the design process, significant cost savings may accrue
to the owner.

This effect can be maximized as the contractor
and designer build a relationship through multiple projects,
overcome traditional animosities and learn to take advantage of
opportunities to improve schedule, budget, and quality. Costs
may be further reduced by the owner not awarding separate design
and construction contracts and not participating in the disputes
between the designer and contractor.

I am aware of several
state DOTs who believe that one of the most significant
advantages to design-build contracting is the opportunity to
fast track projects. Significant time savings can be had
because, as the different components or phases of the design are
completed, the contractor can begin construction of each
completed component. Thus, a full set of detailed construction
drawings is not required as a condition of starting
construction. Again, since both the builder and designer share
in the risk, each has an incentive to work according to a
coordinated set of plans with as little conflict as possible.
When problems are discovered, each has an incentive to design an
appropriate fix on a timely basis (in the field, if possible) to
avoid impacts to the project. Absent the designer sharing in the
cost of delay, the incentive is normally not there, particularly
with constructibility issues or contractor-caused problems.

Finally, to ensure quality, most states are including in
design-build contracts extended warranty provisions or even
maintenance requirements for a set period of time, in addition
to performance requirements. Thus, from a quality perspective,
in addition to obligating itself to meet the performance
acceptance criteria for the project, there is often an incentive
to build a finished, high quality project that will not require
excessive warranty or maintenance work.

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