Midwest Construction Law Blog 
Thursday, March 11, 2010
April 22 Deadline Approaches for Contractors to Obtain EPA Lead Renovation, Repair and Painting Certification
This is a must read for all of you contractors or wanna-be contractors out there. There will be a new federal law starting April 1, 2010 that requires certification under a new EPA program for renovated, repair and/or paint projects.
Contact Information: David Bryan, 913-551-7433, bryan.david@epa.gov
Environmental News
FOR IMMEDIATE RELEASE
(Kansas City, Kan., March 11, 2010) - Beginning next month, federal law will require that contractors performing renovation, repair and painting projects that disturb paint in homes, child care facilities, and schools built before 1978 must be certified in the new EPA Renovation, Repair and Painting Rule (RRP) and follow specific work practices to reduce human exposures to lead.
Common renovation activities like sanding, cutting, and demolition can create hazardous dust and chips by disturbing lead-based paint, which can be harmful to adults and children. To protect against this risk, on April 22, 2008, EPA issued a rule requiring the use of lead-safe practices and other actions aimed at preventing lead poisoning. All contractors must be trained and certified by April 22, 2010.
Landlords, property managers, and their employees are responsible for ensuring compliance with the rule and play an important role in protecting public health by helping prevent lead exposure from their housing units. Lead-based paint was used in more than 38 million homes until it was banned for residential use in 1978.
Lead exposure can cause reduced IQ, learning disabilities, developmental delays and behavioral problems in young children.
To locate an EPA-accredited training provider or to learn more about protecting your family from lead-based paint, visit EPA’s Get Lead Safe Web site, http://www.epa.gov/getleadsafe, or contact the National Lead Information Center, 1-800-424-LEAD (5323).
For information about Iowa’s certification and training program, contact the Iowa Bureau of Lead Poisoning Prevention, 515-281-3479 or 1-800-972-2026, or visit http://www.idph.state.ia.us/eh/lead_poisoning_prevention.asp.
For information about the Kansas certification and training program, contact the Kansas Healthy Homes and Lead Hazard Prevention Program, 1-800-865-3233, or visit http://www.kshealthyhomes.org.
Missouri and Nebraska residents can locate an EPA-accredited training provider through EPA’s Get Lead Safe Web site, http://www.epa.gov/getleadsafe, or by calling the National Lead Information Center, 1-800-424-LEAD (5323). Information is also available from EPA Region 7 by calling 1-800-223-0425.
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For more information, go to EPA’s Get Lead Safe Web site: http://www.epa.gov/getleadsafe
Posted By:
David C. Seitter
on
Thursday, March 11, 2010
Friday, March 05, 2010
House Passes Jobs Bill That Includes Tax Credits for Businesses
Posted March 4, 2010, 3:58 P.M. ET
The House March 4 passed, 217-201, a measure (H.R. 2847) that includes $15 billion in tax cuts aimed at encouraging businesses to hire new workers.
Several changes were made to the Hiring Incentives to Restore Employment (HIRE) Act, including some technical changes designed to improve the administration of the hiring tax incentives while ensuring the measure conforms to the House’s pay-as-you-go rules. The Congressional Budget Office confirmed March 4 that the bill adheres to pay-go rules.
The bill picked up six Republican votes, but 35 Democrats voted against the measure.
The measure delays for a year, from 2019 to 2020, the worldwide interest allocation tax break, offsetting about $2 billion of the bill’s cost over 10 years, avoiding the need to waive pay-go rules, thus garnering the support of the fiscally conservative Blue Dog Coalition.
The jobs bill features a $1,000 hiring and retention tax credit and a payroll tax holiday that total $13 billion to encourage businesses to hire workers who have been unemployed for at least 60 days. Also, the measure would extend Build America Bonds used by state and local governments to cut financing costs for infrastructure projects. An additional provision would extend increased expensing limits for small businesses.
Posted By:
David C. Seitter
on
Friday, March 05, 2010
Friday, March 05, 2010
Construction Firms Should Review Systems Due to OSHA Enforcement, Attorney Says
CHICAGO —In response to the Occupational Safety and Health Administration's tougher enforcement posture, construction firms need to ensure their internal safety compliance systems are current, comprehensive, and effective, an attorney specializing in workplace safety issues told industry representatives Feb. 16.
Meagan Newman, of the environmental, safety, and toxic tort practice of Seyfarth Shaw LLP in Chicago , said enforcement under the Occupational Safety and Health Act has become a major priority for the Obama administration. This priority is manifesting in terms of more inspections, more citations, and larger penalties when violations are determined. She said, this enforcement effort could accelerate further if the Protecting America's Workers Act is enacted. Among other things, the legislation would enhance criminal and civil penalties and create private rights of action for whistleblowers (40 OSHR 68, 1/28/10).
Newman said that in this new enforcement environment the construction industry is being targeted for inspections and penalties. She noted that construction remains one of the most dangerous industries in terms of on-the-job injuries and fatalities. While construction employs only 7 percent of the U.S. workforce, the industry generates 21 percent of all workplace fatalities.
“We are in an enhanced enforcement climate. We are going to see more inspections, more citations and higher penalties, especially if the Protecting America's Workers Act comes into play,” Newman said during the 20th Annual Construction Safety Conference and Exposition. “So we need to do our best to make sure not only are we providing the safest possible conditions for the employees, but we need to make sure we are not unnecessarily leaving ourselves open to citations and high penalties as a result of these inspections.”
Newman said recordkeeping has become a key component of recent inspections in light of OSHA's implementation of Directive Number 09-08 (CPL 01), which became effective Sept. 20, 2009. The directive establishes a National Emphasis Program intended to identify underreporting of workplace injuries and illnesses on OSHA Form 300. The program is targeting employers operating in industries with a history of high rates of workplace injuries and illnesses.
Newman said employers selected for inspection under the National Emphasis Program should expect a comprehensive examination of recordkeeping practices including interviews with designated recordkeepers, managers, first-aid personnel, and health care professionals.
The inspections also include limited “walk-around” evaluations of job sites. She added that OSHA inspectors may choose to expand the scope of such inspections if they observe unusual risks.
Newman suggested employers pay special attention to their internal safety incentive programs. While the intentions of such programs might be good, OSHA is concerned that some programs actually cause workers to underreport injuries and illnesses to win prizes and other rewards, she said.
“You want to be careful when you are having discussions about reward programs because they can lead to potential areas of inquiry about whether they serve as disincentives to report,” she said.
Prior to an inspection, employers need to ensure all safety programs are compliant and current, Newman said. More specifically, she said employers should ensure all “written” programs are effective and current; ensure compliance with all frequently cited standards, especially fall protection and scaffolding; ensure all training programs are completed and current; and, ensure documentation is current for all employees.
In addition, she said employers should conduct self-audits to uncover weaknesses and then remedy the weaknesses.
“The number one thing you can do is: ensure that your safety programs are compliant and your training is up to date,” Newman said. “Now is as good a time as any, when the weather is cold and your job sites are a little slow, to take a deep breath and open up those binders and take a look at what safety programs you have.”
Newman encouraged employers to “manage the inspection” during an actual inspection. The employer should politely receive the compliance officer and provide him or her with a comfortable space to conduct the inspection. The organization's primary point person should shadow the OSHA officer throughout the inspection, she said.
The point person should initially ascertain the scope of the inspection and provide all necessary information to the inspector, Newman said. The point person should ensure that the compliance officer can complete his or her work as quickly and efficiently as possible. At the same time, she said, the point person should feel free to “push back” if the compliance officer moves beyond the original scope of the inspection.
Newman stressed that construction firms must actively protect themselves if they sense the inspection will result in a list of citations. On this point, she said there are several viable legal defenses. Such defenses include: the standard is not applicable; there was no knowledge of the cited conduct; there was no exposure to the alleged hazard; and, infeasibility. Newman said employers can also argue that the alleged misconduct is attributable to an employee despite internal procedures and training designed to address the hazard.
Posted By:
David C. Seitter
on
Friday, March 05, 2010
Friday, February 19, 2010
Forecasting the Next Decade of Wyandotte County (Panel Discussion)
A panel discussion to hear about the careful planning that put “The Dot” on the development map — and where those efforts might lead in the years ahead is being hosted by the Kansas City Business Journal.
The panelists include:
- Dr. Barbara Atkinson – Executive Vice Chancellor, University of Kansas Medical Center
- Jeff Boerger – President, Kansas Speedway
- Dr. Tom Burke – President, Kansas City Kansas Community College
- Dan Lowe – Managing Partner, RED Development LLC
- Brent Miles – President, Wyandotte Economic Development Council
Friday, March 5
Jack Reardon Civic Center, Kansas City, Kan.
Registration 7:30 a.m. Breakfast 7:45 a.m. Panel Discussion 8-9 a.m. $30 per person. Table sponsorship - $500 (includes preferred seating for 10, table sign with company name and a new one-year print subscription)
Advanced registration required. The deadline for registration is Friday, Feb. 26.
Register Here
Posted By:
David C. Seitter
on
Friday, February 19, 2010
Thursday, February 18, 2010
Appeals Court Upholds E-Verify Requirement in Oklahoma
The U.S. Court of Appeals for the Tenth Circuit Feb. 2 upheld Oklahoma’s ability to require contractors and subcontractors to verify employees through E-Verify, the federal employment verification system, before being allowed to work on state projects.
The original lawsuit was filed in 2008 by the Chamber of Commerce with the support of the ABC Oklahoma Chapter and other businesses groups. The appellate court overturned an injunction granted by the U.S. District Court for the Western District of Oklahoma that agreed with plaintiffs that the E-Verify provision in the Oklahoma Taxpayer and Citizen Protection Act of 2007 was preempted by federal law. According to the appellate court, the provision was not preempted because it did not contain civil or criminal sanctions prohibited by federal law and it did not conflict with existing policies or laws on immigration.
In addition to challenging the E-Verify requirement, the original lawsuit challenged a section of the act that allowed workers who were U.S. citizens to sue their employer for discrimination if they are fired or laid off while undocumented workers remained employed, and a section that required contractors to withhold state income tax at the highest income tax rate for independent contractors who do not provide employment eligibility paperwork. The appeals court upheld the injunctions on these provisions noting that they both conflict with congressional policies and/or laws on immigration.
On a federal level, E-Verify is getting a boost from the Department of Homeland Security’s $56.3 billion fiscal year 2011 budget request. The E-Verify program is scheduled to receive $103.4 million for increased monitoring and compliance efforts.
Posted By:
David C. Seitter
on
Thursday, February 18, 2010
Thursday, February 18, 2010
Unintended Consequences: Occupational Disease Cliams Out of Workers' Comp System?
When the Missouri legislature revamped the workers’ compensation system in 2005, many lawmakers believed the changes would help rein in personal injury lawsuits and bring back into balance a system some felt had tilted too far toward injured workers, imposing a high cost on Missouri businesses. However, a recent ruling by the Missouri Court of Appeals Eastern District may prove the 2005 workers’ comp overhaul to be a boon for plaintiff’s attorneys and workers suffering from occupational diseases. As Circuit Judge LisaVan Amburg stated, “The Legislature has perhaps unwittingly taken us back to the beginning of the 20th Century,” when occupational disease was specifically excluded from the workers’ comp system.
In the workers’ comp system, an injured employee gets paid a certain but limited amount for injuries suffered on the job, but the employee does not have to prove negligence to get paid. The employer on the other hand has to pay the employee’s claim, but it can take comfort in the fact that it’s exposure for liability is limited. For the past 80 years, claims of occupational disease have been handled as injuries within the workers’ comp system.
In Franklin v. CertainTeed Corp. (0822-CC07392), a family sought compensation in plaintiff-friendly St. LouisCity civil court for a man’s death from asbestos exposure. The defendant, CertainTeed argued that the case belonged exclusively in the workers’ comp system, not in civil court. The attorney for the plaintiff argued that civil court is exactly where the Legislature intended for cases of occupational disease to be heard, and the Missouri Court of Appeals agreed.
In a 2008 administrative case before the Labor and Industrial Relations Commission, Carney v. Wal-Mart Associates, Inc., reached a similar conclusion to the court in the CertainTeed case.
After the Court of Appeals ruling in the CertainTeed case, the parties reached a confidential settlement, so the Missouri Supreme Court will not get to weigh in on this issue yet. As these recent cases indicate, the workers’ comp landscape has dramatically changed and short of a ruling by the Missouri Supreme Court or legislative action, employers will continue to face uncertainty when dealing with cases of occupational disease.
Posted By:
David C. Seitter
on
Thursday, February 18, 2010
Wednesday, February 17, 2010
2010 Government Market Outlook Report
The Next Economy: 2010 Government Market Outlook Report by Onvia
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The Federal, State, and Municipal Market Today:
$5.5 trillion a year.
$105 billion a week.
$15 billion a day.
$625 million an hour.
$10 million a minute.
$175,000 a second.
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Spending by federal, state, and municipal governments now represents almost half of total U.S. GDP, and that percentage is expected to increase in the coming years.
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Posted By:
David C. Seitter
on
Wednesday, February 17, 2010
Wednesday, February 17, 2010
Breaking News: Transportation Secretary To Award $50 million to KC Area
Transportation secretary to award $50 million to KC area
By BRAD COOPER
The Kansas City Star
U.S. Transportation Secretary Ray LaHood will be in town this morning to dole out $50 million in stimulus money for various transportation projects.
Officials said $26.2 million would go to U.S. Rep. Emanuel Cleaver’s “green zone,” a 150-block area in Kansas City’s urban core that has been marked by high levels of violence and poverty.
It also appears that money will be going for bus rapid transit lines across the metro area, including one planned for Metcalf Avenue and Shawnee Mission Parkway in Johnson County and another for State Avenue in Kansas City, Kan.
The amount of money going for those bus routes was not immediately clear, although regional planners are expected to get the $22 million they sought for developing regional transit corridors.
The money for the green zone would go for fixing 10 miles of broken sidewalks and curbs. It also would fund synchronized traffic signals and replace old signals with modern ones that can be adjusted more easily to improve traffic flow.
The money also would pay for paving 40.5 miles of streets, of which 12.6 miles are considered to be substandard. The money for the green zone will be put toward pervious pavement — a porous yet hard surface with tiny holes that more easily drains storm water runoff.
The state of Missouri is expected to get $5 million to help build a 19-mile bypass around the city of Bella Vista in northeast Arkansas and southeast Missouri. The bypass will complete a critical link in the future Interstate 49, connecting the Port of New Orleans with a number of interstates.
Over in Kansas, transportation officials were still waiting to hear whether that state would get any money.
The state had sought $50 million to jumpstart BNSF Railway’s massive rail hub proposed for southwest Johnson County near Gardner. The rail hub, coupled with a nearby warehousing complex, is one of the area’s biggest development projects. It promises to create 13,000 jobs.
However, it did not appear that the project was funded today.
LaHood is scheduled to hold a news conference at 10:30 a.m. in Kansas City along with Cleaver and Kansas City Mayor Mark Funkhouser.
The money being awarded today comes from a pot of $1.5 billion in discretionary money that was contained in the $787 billion stimulus package that Congress approved last year.
The federal government received 1,381 applications totaling $59.9 billion from all 50 states and Washington, D.C.
Read more:
Transportation secretary to award $50 million to KC area - KansasCity.com
Posted By:
David C. Seitter
on
Wednesday, February 17, 2010
Monday, February 15, 2010
Is This Progress - Or Is This Not Progress? You Be the Judge
An article on the stimulus progress report as seen in the January issue of the Construction Executive magazine recently caught my attention. It mentioned that most Americans are fed up with the state of the economy particularly our job market. No surprise here. If you dare to read or watch the news, our frustration seems to be growing instead of waning and rightfully so. Some Americans feel that the policies put in force to stimulate jobs don't seem to be working. People are skeptical about claims of large term stimulus packages but the American Recovery and Reinvestment Act (ARRA) of 2009 emphasizes that the job losses would be higher if it weren't for these packages. Supposedly, grants made under this act have created jobs. BUT this figure does NOT include the impact of $180 billion of spending to support state government budgets or spending on tax cuts. In early 2009 this package was billed as a public works program which implied that the construction industry would be the major beneficiary. But only 131 to 135 billion of the package focuses on infrastructure spending which means that barely more than 1 in 6 dollars ( the price of a very large latte) will be invested in infrastructure.
Only a small minority of the jobs saved or created to date have been in the construction industry but only $80,000 - 1 in 8 jobs have been created in the construction industry. The largest number of construction jobs were created in the states of Massachusetts, New York, Texas, California, Ohio, Michigan, Illinois, North Carolina, Minnesota and Pennsylvania. One has to wonder why few of these jobs have been created in the Midwest. However, stimulus monies are being obligated and translated into construction put-in-place and associated job creation. contractors have been selected for more than $30 billions of stimulus-related work. Where's the money you say? As of September 1, 2009 roughly 18 billion dollars of ARRA monies had been obligated to highway construction with the states of California, Texas, Florida and Pennsylvania getting the biggest share. Looking ahead, the next several months are shaping up to be a particularly intense period of stimulus package spending particularly on construction related projects. This will help bolster nonresidential construction spending in the months to come. However, through the 3rd quarter of 2009 ARRA construction projects were coming in 16 percent below engineering estimates - a reflection of the competitive landscape in the public sector. It remains to be see if this activity will produce self sustaining recovery in private nonresidential construction arena.
Posted By:
David C. Seitter
on
Monday, February 15, 2010
Monday, February 15, 2010
Is This A Positive or Negative Forecast? You Decide . . .
I recently read the 2010 Construction forecasts for the Kansas City area that is published every year by a local real estate company. They provide 2 scenarios due to market uncertainty: Baseline which is more optimistic and predicts employment will bottom out in the 1st quarter of 2010 but will gradually grow later in the year with more accelerated growth in 2011. The other scenario is a Weaker recovery that predicts employment will continue to fall until the 4th quarter of 2010 with no growth until 2011. Total number of jobs predicted to be lost in Kansas City this year could be 56,000 according to the Baseline scenario but 69,000 according to the Weaker scenario. That's quite a difference and possibly more ominous than expected.
The recent news of more layoffs for Sprint and their current practice of leasing space to 3rd party tenants at its campus is a big reason for concern. If they merge with another wireless company and decide to move out of Johnson County this could take the area years to recover from their move. If you happen to be a tenant in commercial real estate - you're in luck. Opportunities are in your favor especially when you have a lease that is expiring in the next 12 to 24 months. There will be options of recasting existing lease terms to your benefit and/or the possibility of upgrading to a higher class building with little to no additional expense. It's expected that tightened lending requirements should aid the recovery once job growth occurs as lenders may not want to fund projects in areas that have vacancies in excess of 20%. The Kansas City metro area has lost approximately 11,000 manufacturing jobs since the beginning of 2008 and an additional 2500 jobs in construction - Ouch!. MARC's estimates show that employment in the construction industry has bottomed out while the manufacturing sector could shed an additional 4500 jobs under the group's longer recession scenario.
The challenge of obtaining financing over the past year is expected to carry into 2010 and possibly even 2011. Emerging industries in Kansas City that could hopefully spark some activity include animal health and life sciences. The Kansas City Area Development Council (KCADC) has successfully recruited several animal health companies to the region to take advantage of skilled workforce, world-class research facilities and networking ability with similarly focused companies. In an ideal world, the GDP would be growing at a rate of 2 to 3%, so while the economy is still struggling it may be a sign the worst is behind us. The virtual gridlock that is the commercial real estate investment industry is the result of "a perfect storm" of market conditions. The leading factor is the lending environment, which has been reduced to a shell of what it was 2 year ago.
Has this been a bumpy ride? You bet and there may be more to come. Hang in there and we'll get through this together.
Posted By:
David C. Seitter
on
Monday, February 15, 2010