CT Construction Digest Monday April 11, 2022
GREENWICH — Due to complaints that it would not do enough to reduce highway noise in local neighborhoods, the state has pulled the plug — for now — on a $205 million project to improve Interstate 95 in Greenwich, Gov. Ned Lamont and First Selectman Fred Camillo announced.
The major project on the busy commuter corridor — sometimes called the gateway to New England — had been slated to begin this fall from Exit 2 near the New York state border to Exit 6 in Stamford. The roadwork in Greenwich was expected to take three to four years to complete.
“The grassroots efforts of our residents, along with the collaboration of our legislative delegation and Department of Public Works, were successful,” Camillo said in a statement Thursday. “We were able to show the state that there was a need for a more comprehensive plan to mitigate the noise generated by highway traffic, which has a negative impact on our residents and environment.”
Lamont, who lives in Greenwich, said he will direct the state Department of Transportation to “revisit the project scope to provide a more comprehensive solution.”
The goal of the project along the 6-mile stretch was to enhance safety and road conditions, with better lighting and new pavement, barriers and signs as well to refurbish 20 bridges and underpasses, according to the DOT. It also called for reconfiguring Exit 3 of southbound I-95 into central Greenwich, a perennial site of backups and accidents.
Despite support for upgrading the infrastructure and solving problems with traffic tie-ups, many residents complained that the roadwork would not address the issue of noise pollution coming from I-95. Camillo told Greenwich Time that the delay is “a very positive development” and would allow for changes in the I-95 project.
DOT will “revisit the scope of the project,” said Josh Morgan, communications manager for DOT, at the governor’s direction.
“In the interim, we will commence a pavement rehabilitation project this year to extend the life of the roadway until a more comprehensive project can be undertaken.” Morgan said. “Planning and rescoping for such a comprehensive project could take two to three years to complete, which must be followed by formal planning and design activities. This will follow all federal public involvement requirements, as do all DOT projects.”
Residents’ complaints about noise from I-95 have grown in recent years, leading to the formation of the advocacy group Neighborhood Citizens Against I-95 Noise. In January, the group’s president Greg Piccininno told Greenwich Time that it had measured as much as a 10 to 15 decibel increase over the last 20 years from I-95. For those living near the highway, the noise was comparable to the sound a 737 makes while cruising, he said, based on a noise study paid for by the group.
“Our voices were heard,” he said Thursday. The group hopes this delay will allow the state to add more noise mitigation efforts to the project, Piccininno said, perhaps with federal funding.
“We are happy (the DOT) will bring a more comprehensive plan, which takes into account the health and well-being of our community,” he said. “We await a plan that creates an attractive gateway to Connecticut that includes noise abatement. We will reach out to the DOT to offer any assistance necessary.”
The state could have ignored the residents, Piccininno said, and gone ahead with the project, “subjecting Greenwich to four years of construction and traffic issues with all of us still being left with what we already had in terms of noise.”
Quality of life
Camillo also pledged to allocate $500,000 in each of the municipal budgets for 2023-24 and 2024-25 for noise-reduction efforts. If the funding moves forward, he said the town would work on solutions with the state.
In a statement, Camillo thanked Lamont and DOT Commissioner Joseph Giulietti for “understanding the impact this project would have on our neighborhoods and our residents’ quality of life.”
State Rep. Stephen Meskers, D-150, said he was “incredibly grateful” that Lamont had “listened to the concerns of the Greenwich community.” He cited efforts by both the Riverside Neighborhood Association and Byram Neighborhood Association.
“I’m happy that going forward the project is going to include both the appropriate landscaping and noise abatement technology, like sound barriers and quiet pavement technology and quiet joints,” Meskers said. “I think what we want in the gateway to New England is a project that we can all be proud of.”
State Sen. Ryan Fazio, R-36, also supported delaying the planned work.
“Our Greenwich community is being heard. It has been a team effort led by concerned and community-minded residents,” Fazio said. “I thank the governor and DOT for taking this step, and kudos to First Selectman Camillo, Greenwich DPW and my legislative colleagues for all speaking with one voice. It is encouraging to see the positive results when we unite and speak out on important quality-of-life issues.”
Delay in work
Lamont acknowledged that this decision delays making the needed improvements on I-95.
“It is unfortunate that a more timely solution could not be found to move this project forward in the near term,” he said in a letter to Camillo. “However, I feel strongly that a more comprehensive review of the project scope will result in a project that better meets the needs of the I-95 users as well as the surrounding community.”
Meskers said he understood the need for improvements on I-95, but he said it is most important to get the project done correctly.
“This is basically 75 years in the making,” he said of the debate over I-95. “This is a fundamental rebuild of the infrastructure. We want it done right once and for all.”
Parent concerns prompt Norwalk defense of school construction firm tied to Diamantis probe
NORWALK — Documents from the Connecticut construction company involved in several city school projects — including the proposed new Norwalk High — have been sought as part of an ongoing investigation into the state’s former deputy budget director.
However, Norwalk officials and the president of Construction Solutions Group deny the company is a target of the federal investigation.
The Common Council’s Land Use and Building Management Committee, which approved on Wednesday the plan to build the new Norwalk High School on the existing football field, defended CSG after some residents raised concerns about the company and its president, Jim Giuliano.
“Some allegations are being made against Jim and his firm. I’ve worked with him for five years. I’ve always found him to be a man of highest integrity and professionalism,” Committee Chair Tom Livingston said.
In a letter sent to the Common Council and Mayor Harry Rilling on Wednesday and obtained by Hearst Connecticut Media, Giuliano defended his company and contested claims made by Norwalk parent Kelly Turner.
Giuliano said the Norwalk resident’s email suggested the recent subpoenas “question the involvement of Construction Solutions Group,” which he said is not accurate.
“To the best of my knowledge, CSG is not the subject or target of the current FBI investigation. Neither the FBI, nor anyone else has alleged or even suggested any misconduct on the part of CSG or its owners in connection with the projects being investigated,” Giuliano wrote in his letter. “Moreover, Ms. Turner’s statement that ‘there is a grand jury search into Jim Giuliano’ is completely untrue. I assure you, there is no such grand jury inquiry.”
Documents mentioning the East Hartford-based company, which was hired to consult in the building of the new Norwalk High School, were sought in a subpoena issued by the U.S. Attorney for the District of Connecticut to the Connecticut Department of Administrative Services.
CSG also worked on the Jefferson Elementary renovations and plans for construction of a new South Norwalk Elementary School.
Prior to its work on the new Norwalk High School, the company oversaw the renovation of Enfield High School, a project that had a $103 million budget, according to the company’s website.
The Enfield High School project was among several investigated by Gov. Ned Lamont’s administration for improper construction audits and waiving of over-payments to towns that traced to former Deputy Budget Director Kosta Diamantis.
Diamantis was among those at the forefront when the Norwalk High project was announced in December 2019.
“The feds are looking at different communities, not that the community has done anything wrong, they’re gathering information,” Norwalk Building and Facilities Manager Alan Lo said. “They’re approaching different communities to get info. … The name of the firm came up, but it’s not a challenge to the firm’s credibility. It’s the feds looking to build a case and looking for information. They have a responsibility to provide information to the feds for their documents of activities that happened in different communities.”
Norwalk officials have said they have not received a subpoena.
Giuliano said the Norwalk High School funds are not impacted by the investigation into Diamantis.
“The funding for Norwalk High School was approved by special legislation. As a result, it’s there, it’s locked in,” Giuliano said. “The other schools in this situation did not have special legislation, they just went on — for lack of a better term — a promise from the individual that’s being investigated and as a result, the state is questioning. Those districts are now seeking special legislation to incorporate the promises made by that individual.”
The subpoena were submitted in October 2021, when the investigation began into Diamantis. Shortly after the investigation started, Diamantis was fired from his role as deputy secretary of the Office of Policy and Management and retired from his job as head of OSCG&R.
CSG was hired in 2019 to oversee the Enfield High School renovation and remains working for Enfield in that capacity, Giuliano said.
“Neither CSG nor its owners, President Jim Giuliano and Vice President Christopher Cykley, have received subpoenas or court documents to date in connection with this project,” Giuliano wrote in his letter.
Turner, who wrote the email asking about CSG and the investigation, said she was seeking clarification on the construction firm’s involvement.
“I don’t have any knowledge of the construction company, the only thing I can see is what’s being reported in the news,” Turner said. “What I read in the article, it was a red flag, but the council members expressed their support. They work a lot closer with the construction company than I do.”
Correction: This story has been updated to reflect the documents were sought through a subpoena issued to the Connecticut Department of Administrative Services, not Construction Solutions Group.
Shelton developers turn focus to downtown Derby
DERBY — A Shelton developer known for his work improving that city’s downtown is taking his construction act to Derby.
Don Stanziale, Jr., owner of Midland Development and Contracting, with his partners at Cedar Village Development is teaming with fellow Shelton-based John Brennan Construction to turn what has been a long-vacant eyesore on Minerva Street into the Cedar Village at Minerva Square.
The city obtained the property through foreclosure in 2018 -
The project, expected to cost about $10 million, was approved in October by the city’s Planning and Zoning Commission, and Stanziale says he expects to break ground next month.
“I want to bring what we brought to downtown Shelton to Derby,” Stanziale said.
“We’re building this to hold it, to keep it,” Stanziale added. “We are trying to get those young people who cannot afford housing but like the apartment living. They like the amenities, they like the gym. They like the elevator, they like people taking care of them. We do our own management.”
The project, on land listed as 67-71 Minerva St., calls for construction of a four-story complex with under-deck parking and 90 market-rate units. The apartments will be broken down into 39 studios and 51, 1‑bedroom apartments.
The project includes 103 parking spaces, with some available at land listed as 147 Caroline St., which was a small, rarely used city-owned parking lot for additional spaces. Stanziale said his group is in the process of purchasing the land from the city.
Mayor Richard Dziekan’s office, in a press release at the time of the zoning approval, stated that the former Brownfield property on Minerva Street had been sitting unused for more than a decade.
The Board of Aldermen/Alderwomen, in October 2020, reviewed three requests for development proposals and unanimously chose the team of Midland Development and Contracting, Cedar Village Development, and John Brennan Construction as the preferred developer of the site.
The city has been working with the Naugatuck Valley Council of Governments and secured $288,000 for environmental assessment and remediation to support development of the land. Stanziale said the city has maintained ownership of the property during the cleanup.
This is yet another project for Stanziale, owner and builder of Cedar Village at Carroll’s.
His development company is also handling construction of Riverwalk Place at 356 Howe Ave., land owned by Perry Pettis. Work began last month on the multi-story structure that will have first floor retail and 35 apartments on the upper floors.
He has stated that he plans to develop an apartment development at 287 Canal St., the former Ascom Hasler site. No formal plans have been submitted for the property, which Stanziale says he a deal in place to purchase.
Norwalk receives $6M grant for development near SoNo train station
NORWALK — The city has received $6 million in state funding to support developments in South Norwalk as a plan by the governor to boost community livability.
Gov. Ned Lamont announced last week the distribution of $45 million spread among 12 municipalities that aim to improve “distressed municipalities” and add to downtown areas.
Norwalk received $6 million to upgrade the property adjacent to the South Norwalk train station at 30 Monroe St., and 15 to 17 Chestnut St., according to the statement. The work in SoNo will be a collaboration with the city, the Norwalk Redevelopment Agency and Spinnaker Real Estate Partners.
The development set for the area will include at least 200 mixed-income residential units, 10,000 square feet of commercial, a public plaza and 60 off-street public parking spaces, according to the statement.
“By investing in infrastructure and streetscape, such as enhancing traffic safety through new sidewalks, mitigating stormwater runoff to prevent flooding, and planting more trees, this critical infrastructure project will increase livability and add to the vibrancy of our city,” Mayor Harry Rilling said. “This initiative also allocates funds towards the preservation of existing affordable housing, supporting our vision of making the city a more accessible and equitable place to work and live."
Norwalk applied for the grant funding, and chose the area for its proximity to public transit and developmental potential, city spokesperson Michelle Woods Matthews said. Spinnaker Real Estate is also a neighbor of the selected plot.
Woods Matthews said construction, however, will likely not start for 18 to 24 months.
The $45 million is the first round of funding distributed as part of Lamont’s Connecticut Department of Economic and Community Development, according to the statement. The second round is expected to be announced in the fall.
“The grants are leveraging approximately $74 million in non-state and private dollars and will support projects that improve the livability and vibrancy of communities throughout the state,” the governor’s statement read. “Consistent with the goals of the program, more than 50 percent of funding will be invested in Connecticut’s distressed municipalities.”
Norwalk’s $6 million grant is the second largest of the 12 distributed as part of the Connecticut Community Challenge Grant Program, behind the $6.3 million awarded to Hartford to create a two-phased mixed-use development that will generate about 60 new residences, according to the statement.
The newly established Connecticut Community Challenge Grant Program was created last year with the goal of revitalizing communities and creating about 3,000 new jobs, according to the statement.
The department and grant program are expected to award $100 million in grants over the next few years, according to the governor’s office.
“The program is an important component of Gov. Lamont’s Economic Action Plan — a strategic package of initiatives that totals more than $750 million over five years, matched approximately dollar-for-dollar by private and other non-state funding that will result in a projected 80,000 new jobs,” the statement read.
Brookfield streetscape project enters third phase with push to expand Still River Greenway
BROOKFIELD — Surveying crews and fresh fencing found on Federal Road signals the arrival of a new phase in the town’s years long streetscape development project.
In a project update given this past week, Brookfield Community Development Specialist Greg Dembowski said the phase three work now underway will see the extension of the sidewalk and the Still River Greenway Trail south on Federal Road to the site of the new Dunkin’ Plaza before continuing south on Old Route 7 to Laurel Hill Road.
“The Still River Greenway is the second most traveled greenway in the state of Connecticut, it’s been immensely popular since we opened it,” Dembowski said.
Phase one and two of the six-phase, $14.1 million downtown sidewalk, bike path, and street enhancement project led to the creation of the greenway and wrapped up in 2017 and 2019, respectively, before delays associated with the pandemic stalled plans to build on the project’s progress.
Included in the phase three designs is the extension of pedestrian sidewalks along the 700-to-800-foot route along Federal Road and Old Route 7. Expected to be completed in September, the work will produce a “new amenity” called a “pocket park” that will see the instillation of small park area located on the west side of the two roads’ intersection.
The common space will feature “sitting benches, extensive landscaping, and a central brick-paved area where an elevated platform circled with granite will be erected” with plans for it to eventually display an “art sculpture,” according to the plans.
With future phases in the design process, Dembowski added, “…the real goal now is to extend the Still River Greenway north from our downtown into New Milford, and that is really driving our future phases.”
“As one phase gets designed and approved, we go to the next phase and with the success of each phase, we see developers and properties owners become very pleased with the outcome and that’s encouraged more restaurants and retail shops and professional services companies coming in,” he said.
The ‘STEAP’ cost of a streetscape
Estimated contractor costs for the current work, awarded through a bid process to Grasso Companies, are around $960,000 — part of the $1.6 million total estimated cost for third phase, of which 84 percent is covered by a grant from the state’s Department of Transportation, according to Dembowski.
The town contributed $2.1 million of the $4.1 million spent to complete the first two phases of the project, with the difference covered by another state transportation grant.
For all six phases of the streetscape project to be completed, Dembowski said Brookfield expects to have spent $3.1 million in town funds toward a total estimated cost of $14.1 million.
The rest, he added, will be covered by an alphabet soup of state and federal funding sources like the U.S. Transportation Alternatives Program, or TAP, the state’s Small Town Economic Assistance Program, or STEAP, its Local Capital Improvement Program, referred to as, LoCIP, and the CDOT’s Local Transportation Capital Improvement Program, called, LOTCIP.
“There are so many acronyms,” Dembowski joked. “You and I could write a book.”
Stonington receives nearly $2.7 million in funding for Pawcatuck water and sewer projects
Stonington -- The town has received almost $2.7 million in federal funding for two water and sewer projects in Pawcatuck.
The money was part of the 2022 Omnibus Appropriations bill which President Joe Biden signed on March 15 and was put forward by U.S. Rep. Joe Courtney, D-2nd District, and U.S. Sen. Chris Murphy.
It includes $1,952,130 that will partially fund a project that will link two dead-end water lines and create a looped system to improve fire protection in Pawcatuck. The town will have to allocate an additional $900,000 to fully fund the project.
An additional $720,000 was allocated for upgrades to the River Road sewer pumping station in Pawcatuck.
"As soon as we learned about this opportunity, we put together a great team who worked hard and fast to get our applications together. Thanks to an incredible, collaborative effort, we have been able to secure funding for two important projects in our community. It would not have been possible if not for the great partnership between our federal delegation and our amazing team in Stonington -- made up of staff, a resident volunteer, and representatives from our Pawcatuck Fire Department," said First Selectwoman Danielle Chesebrough.
In a statement announcing the funding, Chesebrough said the town identified the need to create the loop water system line in 2018 but the scale and scope of the work remained out of reach due to the funding that was required.
Stonington -- The town has received almost $2.7 million in federal funding for two water and sewer projects in Pawcatuck.
The money was part of the 2022 Omnibus Appropriations bill which President Joe Biden signed on March 15 and was put forward by U.S. Rep. Joe Courtney, D-2nd District, and U.S. Sen. Chris Murphy.
It includes $1,952,130 that will partially fund a project that will link two dead-end water lines and create a looped system to improve fire protection in Pawcatuck. The town will have to allocate an additional $900,000 to fully fund the project.
An additional $720,000 was allocated for upgrades to the River Road sewer pumping station in Pawcatuck.
"As soon as we learned about this opportunity, we put together a great team who worked hard and fast to get our applications together. Thanks to an incredible, collaborative effort, we have been able to secure funding for two important projects in our community. It would not have been possible if not for the great partnership between our federal delegation and our amazing team in Stonington -- made up of staff, a resident volunteer, and representatives from our Pawcatuck Fire Department," said First Selectwoman Danielle Chesebrough.
In a statement announcing the funding, Chesebrough said the town identified the need to create the loop water system line in 2018 but the scale and scope of the work remained out of reach due to the funding that was required.
A concrete decision made in Kent
LYNN MELLIS WORTHINGTON
KENT — The town of Kent is going to have concrete sidewalks by the end of the construction project this summer.
On Thursday, selectmen agreed with 85% of those who responded to the survey distributed to residents that concrete, not asphalt, was the preferred material. There were 726 survey responses and 661 people selected concrete.
“I am completely amazed by this response rate,” First Selectman Jean Speck said of the survey.
Streetscape Building Committee Chairman Mike Gawel made one last plea to go with his committee’s recommendation of constructing the sidewalks from asphalt but the selectmen were not convinced.
Speck made the motion for using concrete and all three selectmen approved it. Selectman Rufus P. de Rham said that his support of concrete had not changed since the debate before the election.
“You have to respect the number of people who came out and spoke their piece,” de Rham said. “Seems like today’s population is strongly in favor of concrete.”
Selectman Glenn Sanchez said that the sidewalk material has been a constant source of discussion among people that he meets and the majority of the people he has spoken with want concrete.
The selectman also agreed to award the project bid of $1.7 million to the Mather Corporation of Bloomfield. The board also agreed with the recommendation from the committee to hire someone to represent the town and oversee the project on a regular basis, in addition to the engineering firm. Speck agreed to work with the committee and share a request for proposal on the position before it is advertised.
The selectmen also adopted a new resolution that clarifies that the $2.9 million in bonding that was approved in May 2019 is specifically for Phase 1 on the streetscape sidewalk construction project. The geographic boundaries of this are North Main Street from the Civil War Monument to across from the Kent Community House and west on Bridge Street to the Housatonic River bridge. The town also has $900,000 in state grants for this same phase.
A second phase to the sidewalk construction is being funded through a $1,882,000 federal grant administered by the state Department of Transportation (DOT). This was awarded in August 2020.
Gawel also recommended that a permit process be established by the selectmen, with a bond, for any work that is done that involves cutting into the new sidewalk by property owners along Main Street or Bridge Street. The selectmen liked the idea that patches that are done will have to be to specifications set by the town.
Is Right-to-Repair Order a Sleeper Issue for the Construction Industry?
LUCY PERRY
Have you been following the Right-to-Repair debate? Though President Joe Biden's executive order limiting anti-competitive practices was meant to chiefly benefit consumers and farmers, it has implications for the construction sector. And not everyone is on the do-it-yourself bandwagon.
The aim of the right-to-repair order was to allow owners to self-repair personal electronic devices, automobiles and machines. Farmers would benefit from the opportunity to repair the heavy machinery they own, and by extension so would construction equipment owners. The order has met with some opposition from equipment manufacturers and distributors.
Specifically, it urges the Federal Trade Commission to exercise statutory rulemaking authority to address anti-competitive restrictions on third-party repair or self-repair of items, "such as the restrictions imposed by powerful manufacturers that prevent farmers from repairing their own equipment."
Biden believes that more often than not if you own a product, from a smartphone to a tractor, these days "you don't have the freedom to choose how or where to repair that item you purchased." At least two members of Congress feel the same.
The Agricultural Right to Repair act, introduced by Senator Jon Tester of Montana, would give farmers the right to DIY. Under it, parts, tools, software and documents would be made available to machine owners to repair, diagnose and maintain their equipment.
It was written with two guarantees: that parts are replaceable with commonly available tools or that special tools are provided to owners under fair and reasonable terms.
Permission to DIY
Under Tester's proposal, copyrights and patents would be part of the public domain once a manufacturer ceases to produce documentation, parts, software or tools for a particular machine.
Tester, a farmer himself, claimed to have seen firsthand "the unfair practices" of equipment manufacturers that "make it harder and harder for folks to work on their tractors themselves — forcing them to go to an authorized mechanic and pay an arm and a leg for necessary repairs."
Have you been following the Right-to-Repair debate? Though President Joe Biden's executive order limiting anti-competitive practices was meant to chiefly benefit consumers and farmers, it has implications for the construction sector. And not everyone is on the do-it-yourself bandwagon.
The aim of the right-to-repair order was to allow owners to self-repair personal electronic devices, automobiles and machines. Farmers would benefit from the opportunity to repair the heavy machinery they own, and by extension so would construction equipment owners. The order has met with some opposition from equipment manufacturers and distributors.
Specifically, it urges the Federal Trade Commission to exercise statutory rulemaking authority to address anti-competitive restrictions on third-party repair or self-repair of items, "such as the restrictions imposed by powerful manufacturers that prevent farmers from repairing their own equipment."
Biden believes that more often than not if you own a product, from a smartphone to a tractor, these days "you don't have the freedom to choose how or where to repair that item you purchased." At least two members of Congress feel the same.
The Agricultural Right to Repair act, introduced by Senator Jon Tester of Montana, would give farmers the right to DIY. Under it, parts, tools, software and documents would be made available to machine owners to repair, diagnose and maintain their equipment.
It was written with two guarantees: that parts are replaceable with commonly available tools or that special tools are provided to owners under fair and reasonable terms.
Permission to DIY
Under Tester's proposal, copyrights and patents would be part of the public domain once a manufacturer ceases to produce documentation, parts, software or tools for a particular machine.
Tester, a farmer himself, claimed to have seen firsthand "the unfair practices" of equipment manufacturers that "make it harder and harder for folks to work on their tractors themselves — forcing them to go to an authorized mechanic and pay an arm and a leg for necessary repairs."
He believes manufacturers have prevented producers from fixing their own machines in order to bolster corporate profits. "They've done it at the expense of family farmers and ranchers, who work hard every day to harvest the food that feeds families across the country," he said.
"Farmers operate in tight windows and on tight margins, and they simply can't afford to waste time or money bringing their equipment to dealer-authorized mechanics in the middle of a season. They need to be able to repair their own equipment, and this legislation will secure them that right."
Congressman Bobby Rush of Illinois introduced the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act. Similar to Tester's bill, it targets the automotive industry on behalf of consumers.
While the issue affects many equipment sectors, it is believed the ag industry has faced a hardship from an increasingly concentrated, less competitive — and more expensive market.
The White House believes heavy machinery manufacturers have developed such sophisticated repair tools, software and diagnostics that farmers and construction equipment owners are prevented from repairing their own equipment.
These proprietary elements force owners to pay dealer rates for repairs the end user or a third party could do the work much cheaper, believes the Biden team. The FTC voted last summer to adopt the order, saying it would target repair restrictions that violate antitrust laws.
"These types of restrictions can significantly raise costs for consumers, stifle innovation," aid Lina M. Khan, FTC chair. They also "close off business opportunity for independent repair shops, create unnecessary electronic waste, delay timely repairs and undermine resiliency."
Machinery manufacturers beg to differ.
The Perils of DIY
The Association of Equipment Manufacturers (AEM) maintains that its members and their dealers already work to maximize productivity and reduce downtime for machinery.
"Overly-broad ‘Right-to-Repair' legislation is not only unnecessary, it would risk the safety, durability and environmental sustainability of equipment," according to AEM.
The concern by manufacturers, such as John Deere, is that end users and third-party repair shops would have access to back-end source code "which can be used to reset safety features, reprogram control units or change settings that affect emissions and safety compliance."
The Associated Equipment Distributors (AED) issued a statement in response to Biden's order. Brian P. McGuire, association president, said that the right-to-repair directive "is a solution in search of a problem."
He said consumers of heavy equipment can already diagnose and repair their machinery and tractors. However, they cannot alter the safety, security and environmental protections on the equipment.
"AED strongly urges the FTC to consider the significant differences between repairing heavy machinery and modifying or tampering with it, as the agency ponders future action."
AED believes that because the FTC is an independent agency, the president cannot compel it to act.
"Despite the executive order, it's unclear what steps the FTC will take or even which actions the agency has the statutory authority to commence without congressional authorization," said McGuire.
AED represents companies that sell, rent, service and manufacture equipment for construction, mining, farm, energy, forestry and industrial applications.
"The equipment distributed by our member companies contains sophisticated technology with complex safety and emissions features," Daniel Fisher, AED vice president of government and external affairs, said in addressing the commission prior to the agency announcing its enforcement plans. "AED is concerned with the FTC's plans to adopt a policy statement supporting ‘right to repair' initiatives and the possibility of subsequent regulations as contemplated by President Biden's recent executive order."
AED believes that a primary basis for applying these policies to the equipment industry is based on a false narrative. The claim that customers are unable to fix their machinery is misleading, the association maintains.
"To the contrary, equipment manufacturers and distributors make available diagnostic tools, repair information and parts. However, consumers do not have the ability to modify the complex environmental and safety protections on the equipment," said Fisher.
AED requested that policymakers "refrain from mandating this type of unfettered access."
The association believes a broad mandate applied to the equipment industry will be detrimental to both safety and environmental compliance.
"Indeed, given that customers are already able to repair their own equipment, the primary reason someone would want the ability to access and alter source code is to override emission controls and safety mechanisms to increase performance," Fisher pointed out.
"This is not fixing equipment; this is modifying it," he added.
The equipment industry has invested time and resources to meet the EPA's Tier IV diesel emissions standards, and the right-to-repair order "threatens these gains," said Fisher, because the public could circumvent environmental protections to boost performance.
Here's another area where the order has implications for the construction industry: Modern heavy equipment has safety features to protect both equipment operators and the public while machinery is in use.
"Granting access to override safety features poses undue risk on operators and bystanders while equipment is in use," he said.
AED wants policymakers to recognize that there's a big difference between a cellphone and a backhoe. "Heavy machinery has a significantly longer life cycle that may be jeopardized by granting unfettered access to source code," said Fisher.
Equipment will often be sold to a customer, then traded-in, resold or rented when a new model is purchased. Modifications to a machine can jeopardize its durability, negatively impacting the environment when it's considered unusable and has to be junked.
"Allowing for modification would subject AED members to significant, unnecessary legal liability issues due to an end-user's ability to tamper with machinery source code," said Fisher.
The bottom line, he said, is that end users already have the parts and info they need to repair their machines.
"The only reason for greater access contemplated by right-to-repair policies is to circumvent safety and emissions standards or to access proprietary intellectual property," he said.
The association urged the FTC "to refrain from adopting a policy statement in favor of right-to-repair, recognizing that the equipment industry's customers do not need any additional resources to fix their machinery."
The issue is not a new one. For several years now, industry associations working together have successfully kept right-to-repair mandates at the state level at bay. The Equipment Dealers Association (EDA) is also fighting the legislation on behalf of its members.
"These very broad bills have been introduced in 30-plus U.S. states and lump ag and construction equipment in with consumer electronics in an effort to give end-users the right to modify equipment," maintains the association. "Unlike cell phones, modifying heavy equipment creates safety and environmental violations that pose an inherent risk to those who operate, repair and sell it."
Deere & Co. announced in March it will make expanded repair software available to customers. This is considered a major win for farmers who have lobbied for years for the ability to do their own mechanical work.
"For more than 180 years, John Deere has empowered customers to maintain their equipment to keep it running right and minimize downtime," the company said in announcing the software availability. "As part of that long-standing tradition, we are proud to announce that we're enhancing the capabilities of our existing diagnostic tools and expanding their availability."
Starting in May, the diagnostic service tool, Customer Service Advisor, will be made available directly to customers and independent repair shops through JohnDeereStore.com. The tool will continue to be available through John Deere dealerships.
"In 2023, we will roll out an enhanced customer solution that includes a mobile device interface, and the ability to download secure software updates directly to embedded controllers on select John Deere equipment with 4G connections."
The software unlocks "deeper system levels" to allow those with the expertise and desire to make more advanced repairs themselves, said Deere. CEG