Gravel2Gavel Construction & Real Estate Law Blog

Evidently everyone does have an App, except me. OSHA’s Heat Safety Tool App enables workers and supervisors to calculate the heat index for their worksite. Based on the heat index, the App displays a risk level to outdoor workers and access via a “click” to reminders about the protective measures that should be taken at that risk level to protect workers from heat-related illness-reminders. Remember that the industries most affected by heat-related illness include construction; trade, transportation and utilities; agriculture; building, grounds maintenance; landscaping services; and support activities for oil and gas operations.

OSHA encourages employers to establish a complete heat illness prevention program to prevent heat illness, and reminds employees to Water, Rest, Shade to prevent heat related illness and fatalities:

• Drink water every 15 minutes, even if you are not thirsty
• Rest in the shade to cool down
• Wear a hat and light-colored clothing
• Learn the signs of heat illness and what to do in an emergency
• Keep an eye on fellow workers
• “Easy does it” on your first days of work in the heat to enable yourself to get use to it

It also warns that every year, thousands of workers become sick from exposure to heat, and some even die. Exposure to heat can manifest as a heat rash, heat cramps, heat exhaustion and heat stroke; heat stroke requires immediate medical attention and can result in death. These conditions are preventable ~ Water, Rest, Shade. Be safe!!!

Additional Sources: U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Heat Wave: A Major Summer Killer; Welcome to OSHA’s Campaign to Prevent Heat Illness in Outdoor Workers; OSHA Compliance Issues: Correcting Common Health And Safety Program Deficiencies At Remediation Sites; OSHA Technical Manual (OTM) Section III: Chapter 4; Cal/OSHA Issues 2nd High Heat Advisory to Employers with Outdoor Workers

Photo: Hey Paul Studios, Outside, Taken Aug. 5, 2012 – Creative Commons

Today, the California Department of Industrial Relations (DIR) announced that it has approved implementation of the 2014/15 Alternative Security Program (ASP), which it boasts that this “first-in-the-nation, innovative program” “frees $7.54 billion in working capital and provides self-insured California businesses greater financial flexibility.”

All employers in California are required to have workers’ compensation insurance to protect themselves and workers, and to minimize the impact of work-related injuries and illnesses. Meeting California’s requirement that all employers in California have workers’ compensation insurance can be done either by buying an insurance policy, or through obtaining authority from DIR’s Office of Self Insurance Plans (OSIP) to self-insure the employer’s workers’ compensation liabilities.

OSIP reports Self Insurance by the Numbers – 2013 Annual Report Statistics as follows:

• $177 Billion total self-insured payroll
• 4 Million CA Workers covered by self-insurance
• 1 in 4 CA Workers is covered by self-insurance
• 9,849 CA Employers are active self-insurers

The ASP, which is operated by the non-profit California Self Insurers’ Security Fund with the DIR, provides financial guarantees to replace security deposits required to collateralize self-insured workers’ compensation liabilities. Otherwise, if an employer is self-insured, it is required to maintain a deposit to collateralize its risk in an amount equal to estimated liabilities as determined by an actuary, e.g., cash, letters of credit, surety bonds or securities. An ASP member’s cash or line of credit is freed up, enabling them to invest these monies into its business.

Additional Source: DIR News Release No. 2014-56, California’s Alternative Security Program Frees $7.5 Billion in Working Capital for Businesses (Jul. 2, 2014); Office of Self Insurance Plans

The Seattle Public Utilities (SPU) and Department of Planning and Development (DPD) are reportedly working together to increase recycling and salvage rates in the hopes of achieving Seattle’s landfill diversion goals — to divert 70%of construction and demolition waste from landfills by 2020. Because certain materials are easy to either salvage or recycle, Seattle is banning asphalt paving, brick, concrete, metal, cardboard, and new gypsum scrap from being sent to a landfill for disposal within the City of Seattle. SPU has set up a facility certification program identifying qualified receiving and recycling facilities for recovering targeted construction materials for recycling and subsequent use.

Starting July 1, 2014, for all construction projects with a work area greater than 750 square feet a Waste Diversion Report with be required as part of the building permit application, and for demolition projects and construction and alteration projects that include demolition, where the area of work is greater than 750 square feet, a Deconstruction and Salvage Assessment will also be required. The DPD reminds everyone that these requirements have been in effect since the 2012 Seattle Building Code was adopted in late December 2013.

DPD’s website confirms that if a Waste Diversion Plan & Deconstruction & Salvage Assessment is not included with the application for a building permit, the completed form can be emailed to DPD at any time during the review process. For technical questions about the Deconstruction Salvage Assessment and/or the Waste Diversion Plan, you can email the SPU.

Additional Source: New Requirements for Construction and Demolition Waste; Recycling Required for Construction and Demolition Projects

Photo: Bala Sivakumar, Seattle Summers, Taken Aug. 14, 2010 – Creative Commons

On May 24, 2011, the Virginia Soil and Water Conservation Board adopted final stormwater management regulations (Virginia Stormwater Management Program (VSMP) Permit Regulation). The date for statewide local government implementation of stormwater management programs is July 1, 2014.

As required by of the Code of Virginia, local governments will become the VSMP authorities, except that the Virginia Department of Environmental Quality (DEQ) will maintain oversight of local programs to ensure compliance with all applicable state regulations. While the local jurisdiction will administer the VSMP, developers/contractors will continue to obtain VSMP General Permit for Discharges of Stormwater from Construction Activities (VSMP Permits) coverage from the state by filing a registration statement online using the state’s ePermitting system; the VSMP Permit will continue to be the vehicle for monitoring compliance with the Virginia Stormwater Management Act.

Importantly, the new regulations include a grandfathering provision, which contemplates that state regulations and local ordinance allow for projects to proceed through construction under the old technical criteria for stormwater management if one of several circumstances applies:

• Projects for which plan approval status has been received by July 1, 2012 or before, but for which no VSMP permit is obtained before July 1, 2014 — (A) Documentation may take the form of a locality approved plan, plat, zoning approval, or other approved document determined permissible under the localities ordinance; (B) Any modification to said locality-approved document may call into question the eligibility of the project to be grandfathered; and (C) Construction must be complete by June 30, 2019.
• Projects with government bonds or public debt financing before July 1, 2012.
• Projects that obtain2009 VSMP permit coverage before July 1, 2014 have two 5-year permit cycles (until June 30, 2024) to be completed, if permit coverage is maintained.

If a project does not qualify under the grandfathering clause, the project will required to meet the new regulations regardless of the stormwater management practices shown on the approved plan.

Additional Sources: July 1, 2014: Stormwater Regulations; Virginia Department to Environmental Quality; Virginia Stormwater Management Program (VSMP) Frequently Asked Questions (FAQ)

In a decision released on June 25, 2014, the US Court of Appeals for the Second Circuit held that ASARCO LLC could not maintain CERCLA cost recovery actions against the trustees of residuary trusts created by the will of John D. Rockefeller, Sr. ASARCO, as part of its emergence from Chapter 11 bankruptcy, paid the US, the State of Washington, and the Port of Everett, Washington $50.2 million to settle pending CERCLA claims at two Superfund sites in Washington State. ASARCO then filed its contribution action against the trustees in federal court on the theory that the remediation costs were “fairly attributable” to the actions of its predecessors at these sites, corporations controlled by Rockefeller that were engaged in mining and smeltering operations nearly 100 years ago. The Second Circuit, affirming the lower court, rejected ASARCO’s claims on the basis that they were barred by the relevant CERCLA statute of limitations, and that ASARCO was not a subrogee entitled to take advantage of another, more generous CERCLA statute of limitation. The case is ASARCO LLC v. Goodwin, et. al.

This ruling follows by only a few days a similar decision by the Tenth Circuit in the case of ASARCO LLC v. Union Pacific Railroad Company, et. al. ASARCO argued that these defendants (the Union Pacific Railroad, the Union Pacific Corporation, Pepsi-Cola, and a bottling company) were also potentially responsible parties at the Vasquez site in Denver, Colorado. ASARCO paid over $1.5 million to settle these claims. The court of appeals held that ASARCO’s post-bankruptcy claims were barred by the relevant CERCLA statute of limitation, and again, that ASARCO could not be considered a subrogee entitled to the CERCLA statute of limitations applicable to subrogees.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

As discussed more fully in my advisory titled EPA Proposes to Eliminate Dual Standard for “All Appropriate Inquires” under CERCLA, on December 30, 2013, EPA published a final rule authorizing use of ASTM E1527-13 to comply with the Appropriate Inquiries (“AAI”) requirements for the innocent landowner, bona fide prospective purchaser, and continuous property owner defenses to CERCLA liability. 78 Fed. Reg. 79319. This final rule did not remove reference to the 2005 standard. Thus, although EPA made clear that reliance on the updated ASTM Phase I standard would satisfy a purchaser’s AAI obligations under CERCLA, EPA left significant uncertainty as to whether a Phase I without agency file review was sufficient to meet AAI requirements because EPA did not remove the reference to the 2005 Phase I standard. On June 17, 2014, EPA proposed to amend the AAI Rule in 40 CFR 312 to remove the reference to ASTM E 1527-05. According to EPA’s proposal, the “proposed action removes the reference to a standard that ASTM International no longer recognizes as current and that it no longer represents as reflecting its current consensus-based standard.” 79 Fed. Reg. 34480.

Today, Pillsbury attorneys Matthew Burke and Craig Becker published their advisory titled Ocean Avenue LLC v. County of Los Angeles Affirmed; AB 2372 Passes Assembly. The Advisory discusses the California Court of Appeal for the Second Appellate District’s June 3, 2014 order affirming the Superior Court ruling in Ocean Avenue LLC v. County of Los Angeles, holding that even though 100 percent of an entity was sold, a reassessable change in ownership of the entity’s real property did not occur because no one person obtained more than 50 percent of the entity. It further discusses how Assembly Bill 2372 would change that result by requiring reassessment of an entity’s realty if 90 percent or more of its ownership interests were sold within a three year period, even if no one owner acquired more than 50 percent.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matthew Burke or Craig Becker, the authors of this blog.