Articles Posted in Construction Generally

Posted
by

It’s not over until it’s over. The State of Alaska was recently given another opportunity to challenge the U.S. Forest Service’s 2001 “Roadless Rule,” a rule that prohibits the construction and repairs of roads and timber harvesting on millions of acres in the national forests. The case is State of Alaska v. U.S. Department of Agriculture, et al. On November 7, 2014, the D.C. Circuit Court of Appeals reversed the District Court’s dismissal of the State of Alaska’s challenge to the Forest Service’s January 2001 “Roadless Rule,” a rule repealed by the Forest Service in 2005 and reinstated by the District Court for the Northern District of California in a decision issued in 2006, California ex rel. Lockyer v. U.S. Department of Agriculture, 459 F. Supp. 2d 874, 916 (N.D. Cal. 2006) (court reasoned that the elimination of a major nationwide land management program would be sufficient to trigger environmental analysis, rejecting the Department of Agriculture’s argument that replacing the Roadless Rule was a paper exercise).

In 2011, the State of Alaska filed a challenge to the reinstated 2001 “Roadless Rule.” The District Court for the District of Columbia dismissed the action as being untimely filed under 28 U.S.C. § 2401. The Forest Service argued that the State of Alaska’s challenge was out of time because, according to the Forest Service, Alaska’s right of action accrued in 2001 when the 2001 Roadless Rule was issued. On appeal, the Court of Appeals held that “[t]he fundamental problem with the Forest Service’s argument is that the Forest Service repealed the Roadless Rule in 2005. The Forest Service’s 2005 repeal of the Roadless Rule extinguished the right of action that had accrued in 2001.” It further held that the 2006 action of the California District Court effectively resulted in the issuance of “a new rule identical to an old repealed rule” being issued, and created a new right of action “accrued”; “[t]he Forest Service concedes that a new right of action would have accrued in 2006 if the agency acting on its own had issued the new rule.” Accordingly, the Court of Appeals held that the ability of the State of Alaska to file this lawsuit was revived, and its lawsuit is timely. It cited to the “reopener” doctrine, a doctrine “giving rise to a ‘new right of action’ even though the regulation challenged is no different,” citing Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997). The case was remanded to the District Court for consideration of the State of Alaska’s challenges to the reinstated rule.

Posted
by

Day before yesterday, the Supreme Court heard oral argument on November 5, 2014 in the case of Yates v. United States. The Supreme Court is being asked to answer the question: “Whether petitioner’s efforts to thwart a government investigation by dumping undersized fish at sea violated the criminal prohibition on “knowingly … destroy[ing] … [or] conceal[ing] … any … tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” 18 U.S.C. 1519. Although the Sarbanes-Oxley Act, when enacted, was concerned with corporate fraud, the Yates case reflects that it may be used to sweep in all kinds of trivial forms of noncompliance–and subject an individual to felony prosecution. For example, Justice Breyer has observed that the Sarbanes-Oxley Act could apply to throwing away an EPA questionnaire about a company’s waste recycling activities. The Supreme Court’s ruling in Yates likely will have some impact on company’s routine records management practices.

John Yates, a Florida commercial fisherman, was prosecuted under the criminal provisions of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 802(a), 116 Stat. 800, for allegedly destroying evidence that he had caught undersized red grouper, a fish protected by federal regulations promulgated by the National Marine Services agency. Under the law, he was subject to a maximum of 20 years federal imprisonment, but in the end, the presiding judge sentenced him to 30 days. He is being defended by the Tampa, Florida Federal Defenders Office.

The Supreme Court was clearly troubled by the government’s zeal in using the Sarbanes-Oxley Act, which was understandably enacted in the wake of the Enron collapse, to prosecute something other than the destruction of financial records involved in a federal investigation. The government argued that since the Sarbanes-Oxley Act addresses the destruction of a “tangible object”, this provisions clearly applies to undersized fish. The defense argued before the court that “everything about this case is absurd”, and Justice Scalia stated “What kind of mad prosecutor will try to send this guy up for 20 years?” The government replied that this prosecution was consistent with the DOJ’s charging policy, which also created considerable comment by the Justices.

The amicus briefs made the point that this case illustrates the threats embedded in the over criminalization of federal regulation — and there may be as many as 300,000 rules on the books affected by this use of the Sarbanes Oxley Act — a claim which may be somewhat dubious.

Posted
by

Many construction projects are subject to the federal Clean Water Act and its regulation of the discharge of pollutants into the navigable waters of the United States, which the law defines simply as the “waters of the United States”. This definition drives the scope of federal jurisdiction in numerous areas. The EPA and the U.S. Army Corps of Engineers have significant regulatory responsibilities under the Clean Water Act, and these agencies are now proposing to revise the current definition of this very important term.

Today, Pillsbury attorneys Anthony Cavender, Brad Raffle, Wayne Whitlock and Amanda Halter published their advisory titled Oil and Water: Proposed Redefinition of Waters of the U.S. Has Significant Implications for Domestic Operations. The Advisory discusses the EPA and U.S. Army Corps of Engineers announcement of a new Nov. 14, 2014 deadline to submit comments to its much-debated redefinition of the term “Waters of the United States.” The extension, several related legal and regulatory developments since this proposed rule was published in April, and now the results of the election, make this an opportune time to reassess the impact this redefinition will have on domestic operations, including, in particular, oil and gas operations and activities, during a period of extraordinary domestic growth.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, Brad Raffle, Wayne Whitlock or Amanda Halter, the authors of this blog.

Posted
by

On September 9, 2014, Governor Edmund G. Brown Jr. signed into law Assembly Bill 2053 amending California Government Code § 12950.1. Subdivision (b) requires an employer, as defined, to include prevention of abusive conduct , as defined, as a component of the training and education required in Subdivision (a) of Government Code § 12950.1.

For purposes of Section 12950.1, “employer” means “any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities” (Cal. Gov. Code § 12950.1(g)(1)) and “abusive conduct” means “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious” (Cal. Gov. Code § 12950.1(g)(2)).

Additional Source: California Legislative Information, A.B. 2053 (2014)

Posted
by

On July 8, 2014, Governor Edmund G. Brown Jr. signed into law Assembly Bill 326 amending California Labor Code § 6409.1. Subdivision (b) requires every employer, in addition to the report required by Subdivision (a), to make an immediate report to the Division of Occupational Safety and Health by telephone or email of every case involving an employee’s serious injury or illness or death. Failure to do so, will expose the employer to a civil penalty of not less than $5,000.

As amended, Section 6409.1 reads:

“(a) Every employer shall file a complete report of every occupational injury or occupational illness, as defined in [Cal. Labor Code § 6409(b)], of each employee which results in lost time beyond the date of the injury or illness, or which requires medical treatment beyond first aid, with the Department of Industrial Relations or, if an insured employer, with the insurer, on a form prescribed for that purpose by the department. A report shall be filed concerning each injury and illness which has, or is alleged to have, arisen out of and in the course of employment, within five days after the employer obtains knowledge of the injury or illness. Each report of occupational injury or occupational illness shall indicate the social security number of the injured employee. In the case of an insured employer, the insurer shall file with the division immediately upon receipt, a copy of the employer’s report, which has been received from the insured employer. In the event an employer has filed a report of injury or illness pursuant to this subdivision and the employee subsequently dies as a result of the reported injury or illness, the employer shall file an amended report indicating the death with the department or, if an insured employer, with the insurer, within five days after the employer is notified or learns of the death. A copy of any amended reports received by the insurer shall be filed with the division immediately upon receipt.

(b) In every case involving a serious injury or illness, or death, in addition to the report required by [Cal. Labor Code § 6409.1(a)], a report shall be made immediately by the employer to the Division of Occupational Safety and Health by telephone or email. An employer who violates this subdivision may be assessed a civil penalty of not less than five thousand dollars ($5,000). Nothing in this subdivision shall be construed to increase the maximum civil penalty, pursuant to [Cal. Labor Code §§ 6427 to 6430], inclusive, that may be imposed for a violation of [Cal. Labor Code § 6409.1].”

Subdivision (b) of Labor Code § 6409 defines “occupational illness” to mean “any abnormal condition or disorder caused by exposure to environmental factors associated with employment, including acute and chronic illnesses or diseases which may be caused by inhalation, absorption, ingestion, or direct contact.”

Additional Source: Safety Training is Saving Lives, but Four Industries Remain High Risk; California Legislative Information, A.B. 326 (2014); State of California, Department of Industrial Relations, Division of Occupational Safety and Health (DOSH) (aka Cal/OSHA) ; State of California, Employer’s Report of Occupational Injury or Illness; Cal/OSHA Enforcement Unit Regional and District Offices

Posted
by

Today, the State of Nevada Contractors Board (Board) issued a Notice of Intent to Act Upon a Regulation, confirming that it will conduct a public workshop on Monday, December 1. 2014 at 9:00 a.m. PST and a public hearing on Wednesday, December 10, 2014 at 9:00 a.m. PST on the proposed amendments to Nevada Administrative Code § 624.170. The proposed amendments add a sub-classification to the B-General Building classification to allow remodeling and improvement of interior spaces, including structures which exceed more than three stories in height and buildings with fewer than three stories that are connected to structures which exceed three stories.

As currently drafted, Section 624.170 would be amended to add:

Commercial Remodeling (subclassification B-6): The remodeling and improvement of interior spaces in structures which support, shelter or enclose persons or animals or other chattels, including structures which exceed more than three stories in height and buildings with fewer than three stories that are connected to structures which exceed three stories. The provisions of this section do not authorize the holder of a classification B-6 license to perform modification of existing structural members or the installation of new structural members.

Anyone that wants to comment upon the Board’s proposed action may appear at the workshop or may address their comments, data, views or arguments, in written form to the Executive Officer of the Nevada State Contractors Board, 2310 Corporate Circle, Suite 200, Henderson, Nevada 89074 and the Reno office located at 9670 Gateway Drive, Suite 100, Reno, Nevada, 89521. Written submissions must be received by the Board 5 days prior to the workshop. If no person who is directly affected by the proposed action appears to request time to make an oral presentation, the Board may proceed immediately to act upon any written submissions.

Additional Sources: Nevada State Contractors Board, Notice of Intent to Act Upon a Regulation (Nov. 5, 2014); Nevada State Contractors Board, Proposed Temporary Regulation of the State Contractors Board (NAC 624.170); NV Licensing Board to Discuss Proposed Amendments to NAC 624.170 Concerning Remodel of High Rise Buildings

Posted
by

On November 1, 2014, the Contractors State License Board (CSLB) submitted its Sunset Review Report to the Legislature. Among other things, the Sunset Review Report highlights select CSLB achievements. It also includes a list and summary of the legislation sponsored by the CSLB from 2011 through 2014, and urges the Legislature and Administration to support efforts to modernize and streamline laws and regulations related to contracting in California to help ease complicated requirements for contractors and confusing language that prevents consumers from making informed choices. Of particular interest, several table summarize licensee-related data, including Table 6 – Licensee Population, Table 7A – Licensing Data by Type, and Table 7b – Total Licensing Data. Section 4 further responds to questions about the CSLB’s licensing program.

The CSLB’s previous sunset review was conducted in 2011; California Senate Bill 543 (Steinberg, Chapter 449, Statutes of 2011) extended CSLB’s sunset date from January 1, 2012 to January 1, 2016.

Additional Resource: California Department of Consumer Affairs, Contractors State License Board Sunset Review (November 2014)

Posted
by

Congratulations Steve Thornton! Jose Rodriguez, Assistant Director for Field Services and Public Safety for the Washington State Department of Labor & Industries (the “Department”), announced in the Electrical Currents newsletter from the Office of the Chief Electrical Inspector, Vol. 18, No. 11 (Nov. 2014), the appointment of Stephen Thornton as the new Chief Electrical Inspector, effective October 16, 2014.

According to Jose, Steve has worked for the Department for 20 years, working as an Electrical Inspector, with the last 17 years serving as an Electrical Inspection Supervisor since July 1996. Congratulations and thank you for your service!

Additional Source: Chief Electrical Inspector for WA Department of Labor & Industries Stepping Down; California Looking For Next Registrar of Contractors

Posted
by

In a recent press release, California Contractors State License Board Registrar Steve Sands reminds contractors that “[c]ontractor licenses are not transferrable between anyone: associates, friends – family members included.” In California, all home improvement jobs valued at $500 or more, which includes both labor, material costs and other item costs combined, are required to be performed by a person or entity that is properly licensed by the CSLB. The licensee is responsible for the work performed under its contractor’s license number being done in all material respects in accordance with accepted trade standards for good and workmanlike construction. If it is not, it is exposed to disciplinary action by the CSLB, which could include a civil penalty and/or citation, among other things. It is also responsible for maintaining the appropriate bond (Cal. Bus. & Prof. Code § 7071.6) and workers’ compensation insurance (Cal. Bus. & Prof. Code § 7071.6).

Moreover, California Bus. & Prof. Code § 7068.1 requires the licensee’s qualifier (e.g., the responsible managing employee (RME), officer (RMO), or manager/member (RMM)) to be responsible for exercising that “direct supervision and control of his or her employer’s or principal’s construction operations” to secure compliance with the Contractors’ State License Law, Bus. & Prof. Code §§ 7000 et seq. A violation of Section 7068.1 comes with a hefty civil penalty and the possibility of a criminal penalty. Subdivision (e) of Section 7068.1 contemplates that it “shall constitute a cause for disciplinary action and shall be punishable as a misdemeanor by imprisonment in a county jail not to exceed six months, by a fine of not less than three thousand dollars ($3,000), but not to exceed five thousand dollars ($5,000), or by both the fine and imprisonment.” The CSLB recently warned license qualifiers that, “[w]ith consumer risk in mind, CSLB is aggressively and stringently taking enforcement actions against those involved in this trend [of not properly supervising work that is being performed]… .”

Additional Source: CSLB, Watch Out for Contractor’s Who Try to ‘Share’ a License

Posted
by

On July 16, 2014, the U.S. District Court of the District of Maryland issued an important Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA), ruling in the case of Sherrill, et al. v. The Mayor and the City Council of Baltimore, 2014 WL 3555956. The City of Baltimore has taken steps to revive and remediate a waterfront property that was the site of a former chemical manufacturing plant. It is conceded that spills and releases of hazardous substances and hazardous wastes have contaminated the site, but the City has entered into an agreement with a casino operator to construct a casino on the property. The matter has been very controversial, causing the plaintiffs in this lawsuit to file a citizen suit under Section 6972 of the RCRA alleging that contaminants are migrating off the property and polluting adjacent properties.

The site was placed by the city into Maryland’s Voluntary Cleanup Program, which required that the City develop adequate cleanup plans. The owner and operator of the proposed casino agreed to take over some of the cleanup operations, and has in fact undertaken waste extraction and removal actions. In connection with the cleanup, the casino operator also ensured that any storm water wastewater discharges were covered by the Maryland General Construction Storm Water Permit, which incorporated the cleanup plans.

The District Court held that this Clean Water Act (CWA) storm water discharge permit triggered the “anti-duplication” provisions of the RCRA and therefore shielded the casino operator from any RCRA liability, and these claims were dismissed. In addition, the claims against the City of Baltimore and the owner of the former chemical plant were also dismissed because the court held that those allegations were insufficiently pled. In effect, this decision expands the CWA permit shield to allegations of RCRA violations.

An appeal has been filed with the 4th Circuit.