Construction & Design Law

Goldfish in a Concrete Aquarium

Cartoon goldfish

Most of my pre-law school building experience was in New England. Besides the ever changing weather, differing subsurface site conditions presented a variety of challenges. Ledge is commonplace but very hard to predict whether a nearby outcropping would interfere with excavation. Water well depth was typically difficult to predict even by drillers with local experience. And, most challenging was dealing with groundwater, especially flooded basements. Even with perc test holes, the distance from the septic field to the foundation increased the odds that the groundwater level in the excavation was different, or upon digging a spring was found. In Seattle, as a construction lawyer in the 1990s, I was called on frequently by owners to help diagnose and remedy wet or flooded foundations. One memorable project was a dream house being constructed by a tech millionaire. Soon after the foundation and then the slab were poured, the basement filled up …

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Death Trap Buildings

Florentine Codex - infection of Aztecs with smallpox

On July 9, 2020, the World Health Organization (WHO) bowed to pressure from scientists to concede that the novel coronavirus (SARS-CoV-2) could cause infection via aerosols. (See https://bit.ly/39EHerk.) Aerosols are simply small droplets (generally described as under 5 microns) containing the virus that can linger in the air for hours. The author of the linked New York Times opinion article, engineering professor Linsey Marr, writes that a 5 micron droplet takes about a half-hour to drop from the mouth of an average height adult to the floor – longer if there are air currents. Link to article, https://nyti.ms/3ggetDM. This is not rocket science, even the Aztecs knew that smallpox was airborne. The implications of this fact are enormous, for the legal liability of design professionals responsible for maintaining healthy buildings, for employers responsible for employee safety under the general duty clause of OSHA, and for people with a statistically higher risk of poor health outcomes if infected. ASHRAE has already released a document beginning to address airborne transmission (https://bit.ly/2PccVit) but as Professor Marr’s article describes in the NYT, scientific data on this risk vector is in its early development. Employers and school administrators with responsibility for reopening decisions must now …

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Pyrrhotite Contaminated Concrete – A Call for Collaboration

Map showing area in MA and CT with pyrrhotite contaminated concrete

In Biblical fashion, more than 34,000 residential foundations in Connecticut and Massachusetts were built on sand between 1983 and 2016.  Not literally, but many if not most residential concrete foundations containing pyrrhotite aggregate from Becker’s Quarry in Willington, CT and mixed by JJ Mottes Concrete in Stafford Springs, CT will need to be repaired or replaced eventually. Those that contain pyrrhotite and have not (yet) shown evidence of failure will remain suspect and likely impact the value of the real estate.  This article focuses on the single-family residential sector but the problem may be wider. Connecticut DOT asserted that pyrrhotite concrete has not impacted its structures. However, there is visual evidence that some commercial and multi-family residential structures are showing telltale signs of pyrrhotite deterioration. What is known is that thousands of pyrrhotite foundations are crumbling in a slow-motion disaster.  The cost of correction currently ranges from $150,000 to $350,000, for lifting and fully replacing foundations. The economic impact on the region is immense. Connecticut officials have already identified approximately 50 towns affected by pyrrhotite foundations.  Only about 700 buildings have been officially reported to date in Connecticut. However, Governor Malloy estimates that over 34,000 homes might be affected. Massachusetts …

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Constructuring

Title Page - AGC Managing Risk in the Digital Age

Associated General Contractors (AGC) and FMI recently published a survey of contractors’ perceptions of risk together with an analysis of factors expected to drive change in the U.S. engineering & construction (E&C) industry in the coming years. See Managing Risk in the Digital Age. The survey (completed late 2017 and published in 2018) yielded in four key findings: The “people factor” remains one of the biggest risks for E&C firms in today’s business environment. Industry stakeholders expect to see more change in the built environment within the next five years than there has been in the last 50 years. Most survey respondents are innovating “around the edges” and adopting technology in a piecemeal fashion (or not at all) but not fundamentally transforming their business approaches. For years, contractors have tackled risk by purchasing insurance programs and managing claims. Today that is no longer enough. The survey notes that business is strong and is expected to continue well into 2019. Despite the current positive activity, E&C industry leaders are concerned with a variety of risk factors including: labor shortages (especially skilled trades and field supervisors but including managers), the decline in the quality of design documents, and the accelerating pace of …

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Reality Bites – Caught “Lead Handed” on TV

Do TV contractors poison their real world customers? According to an EPA press release dated June 5, 2018: “The U.S. Environmental Protection Agency (EPA) and Magnolia Waco Properties, LLC, which does business as Magnolia Homes, have reached a settlement to resolve alleged violations of the Toxic Substances Control Act (TSCA) Lead Renovation, Repair and Painting Rule (RRP Rule), related to home renovations conducted without adequate lead paint protections as depicted on the television program Fixer Upper. Under the terms of the settlement, Magnolia will take steps to ensure compliance with lead-based paint regulations in future renovation projects, address lead-based paint hazards at high-risk homes in Waco, Texas, and educate the public to lead-based paint hazards and appropriate renovation procedures.” Allegedly, according to a November 29, 2017 administrative complaint, Chip and Joanna Gaines, stars of HGTV’s “Fixer Upper” and owners of Magnolia Waco Properties, LLC (d/b/a Magnolia Homes), “did not comply with all of the requirements of the RRP Rule in renovations it performed in 33 properties in the Waco, Texas.“ Getting caught “lead handed” on national TV is sort of the opposite of demonstrating competence in the building industry. Who would have thought that the RRP applied on television or …

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EPA Still Says Get the Lead Out

Through back channels only at the time of this writing, EPA announced the results of its “Section 610” review of the lead safe rules (RRP). One of the interesting findings is that since the RRP rules were first issued, the science behind lead contamination has changed. In the announcement of the EPA Office of Pollution Prevention and Toxics dated April 2018, the EPA recognizes that lead is even more toxic than previously understood. On first reading of the 67-page announcement, it appears that this fact is significant in EPA’s reasoning behind keeping the rule intact and not re-instituting the old opt-out waiver. The conclusion is that danger still exists, that the overall economic costs of lead poisoning outweigh the costs of compliance, and finally that the issue of high false positive lead test kits is not sufficient to weaken the lead protection. [Copy of EPA Section 610 Review here or see pdf at end of article] The review considered fifteen public comments related to the 610 Review, as well as providing a discretionary response to another twenty comments received during prior comment periods on the accuracy of test kits. The comments and EPA’s responses were in the following categories: lead test …

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Risk Management – How to Avoid the Construction Wheel of Misfortune

Roulette Wheel seen from space

Risk management is everywhere. The principles, definitions, and plans involving risk management can be applied to almost any industry or endeavor. Depending on the industry, the sources of risk and the consequences of a particular risk, the approach to risk management will vary. Some risk management is mandatory. For instance, the EPA requires facilities that use extremely hazardous substances to submit a risk management plan (RMP) every five years to be in compliance with Sec. 112(r) of the 1990 Clean Air Act Amendments. On the national level, the Department of Homeland Security developed a National Infrastructure Protection Plan outlining, “how government and private sector participants in the critical infrastructure community work together to manage risks and achieve security and resilience outcomes.” Some risk management plans are recommended by government agencies as industry standards. The US DOT Federal Highway Administration published a guidebook, Risk Assessment and Allocation for Highway Construction Management, concluding that, “(t)he business case for including risk assessment and allocation as a standard project management component of major capital projects is unambiguous: The ability to better understand potential risks and how to manage them yields benefits far in excess of the costs of adopting risk management practices.” CalTrans has …

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Create a Legally Defensible Document Retention / Destruction Policy

My February 2015 NARI Legal Corner guest blog titled Build a Record You’ll Be Proud Of, addressed the importance of recordkeeping for contractors and provided practical guidelines for creating project records.  It showed that the successful management of construction projects requires proper management of a company’s records and other “information assets.”  Information asset management should be viewed as a key component of every contractor’s overall risk management program. The article concluded by recommending that organizations develop and implement a document retention policy and legal retention schedule, which together allow old records to be destroyed in a legally defensible manner. This article describes an approach to managing and retiring (destroying) information assets that is based on industry standards and best practices. A document retention policy is really a document destruction policy Information as Assets Broadly defined, information assets include not only project records, accounting records and official documents but all other information holding any value or representing any risk to the organization.  Information assets include anything that is recorded or stored such as email, instant messaging, voicemail, databases, digital photos or any type of document, whether printed out or not.  Assets in the form of Electronically Stored Information (ESI) also include …

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Build a Record That You’ll Be Proud Of

Coliseum

The management of construction projects involves the management of information. Frequently, decisions need to be made on-the-fly, before the written information necessary to document the decision is available.  Under time pressure and with no reliable systems in place, project documentation (building a record) is regularly neglected. Unfortunately, a poorly built record can have serious negative legal, and financial consequences. Why Build a Record? One good measure of the success of a construction project is whether the completed building meets the needs and vision of the owner. Even small projects require a written proposal containing references to plans and specifications.  Without good documentation, there is a greatly increased risk that the customer’s vision may not be converted to reality, leading to a dispute.  A key attribute of project documentation is the extent to which it enables any given stakeholder (general contractor, subcontractor, designer, supplier, owner, lender, insurer) to protect its own legal and financial interests during the course of, and after the project. A poorly built record can have serious negative, legal, and financial consequences. If a dispute arises for any reason (payment, workmanship, change orders, etc.) the first thing that lawyers need to see is the record – for the …

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Smile – Caught on RRP Camera

Still photo of contractors sanding residence

EPA Crowdsourcing lead paint enforcement in New England Crowdsourcing The practice of outsourcing a job or task that is traditionally performed by employees or a contracted company to a non-organized, usually large group of people, generally in the form of an open call or competition. Note to self: Don’t break law in plain sight of your competition Late last year, I found a long version of a YouTube video showing two men dry-sanding a residence in Rockland, Maine. The video was shaky and amateurish but had a series of captions describing a fairly complete list of alleged violations of the EPA’s new RRP Rule, which mandates lead-safe paint removal practices on pre-1978 housing. I was searching for photos while updating a PowerPoint presentation on the Legal Aspects of the EPA Lead-Based Paint Renovation, Repair & Painting (RRP) Rule. I showed it to a group of contractors at my next seminar and …

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