EPA Seeks Comment on Clean Water Act Section 401 Certification Rule


CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

July 19, 2021
Karen Bennett - Lewis Brisbois

The Environmental Protection Agency (EPA) announced that it will revise a 2020 final rule clarifying requirements for water quality certification under the Clean Water Act (CWA). 85 Fed. Reg. 42210 (June 2, 2021). CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

In an effort to eliminate 401 certification being used as a tool for delaying or imposing conditions unrelated to protecting water quality on federal permits, the 2020 rule established limits on the scope and timeline for review and required any conditions on certification to be water-quality related. State and Tribal governments and environmental groups challenged the rule, arguing it constrained state and tribal decision-making authority by limiting the term “other appropriate requirements of State law” in CWA Section 401(d) to “water quality requirements” and “point source discharges.”

With EPA’s decision to revise the rule, many believe these same scope and timing limitations will be targets for change. Clients with experience, positive or negative, under the 2020 rule should consider submitting comments by the August 2, 2021 deadline.

Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

Determining Occurrence for Injury Under Commercial General Liability Policy Without Applying “Trigger Theory”

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An occurrence will be deemed to occur when the accident causing the injury occurred, as defined by the policy.

July 19, 2021
David Adelstein - Florida Construction Legal Updates

Oftentimes an occurrence in a commercial general liability policy is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” It is this occurrence that causes the bodily injury or property damage that may be covered by the policy.

An interesting non-construction case determined an occurrence under a commercial general liability policy occurred when the negligent act occurred irrespective of the date of discovery or the date the claim was discovered or asserted. See Certain Underwriters at Lloyd’s, London Subscribing to Policy No. J046137 v. Pierson, 46 Fla.L.Weekly D1288c (Fla. 4thDCA 2021). This is interesting because the appellate court did NOT apply a “trigger theory” to first determine the occurrence’s policy period. The appellate court found it did not need to determine which “trigger theory” applied to determine the occurrence for the injury and relied on a cited case: “trigger theories are generally used in the context of deciding when damage occurred ‘in cases involving progressive damages, such as latent defects, toxic spills, and asbestosis’ because the time between the ‘injury-causing event (such as defective construction, a fuel leak, or exposure to asbestos), the injury itself, and the injury’s discovery or manifestation can be so far apart.” Pierson, supra, citing and quoting Spartan Petroleum Co. v. Federated Mut. Ins. Co., 162 F.3d 805, 808 (4th Cir. 1998).

Mr. Adelstein may be contacted at dma@kirwinnorris.com

White House Meets Builders, Unions on Home Shortage

July 19, 2021
Eric Martin - Bloomberg

The White House held a meeting with representatives from across the homebuilding industry on Friday as President Joe Biden seeks to address a housing supply shortage that’s spurring a record increase in home prices.

Top Biden administration officials sat down with representatives from across the supply chain, including builders, housing advocates, lumber companies, real estate firms, loggers and labor unions, the White House said in a statement. Builders cite high materials prices, scarce supplies and a dearth of skilled workers as ongoing challenges in the race to complete new homes.

Daniel Ferhat Receives Two Awards for Service to the Legal Community

Congratulations card

The award was given in recognition of Daniel Ferhat's leadership as President of PADC over the past year.

July 19, 2021
Daniel Ferhat - White and Williams LLP

Partner Daniel Ferhat was recently recognized by The Philadelphia Association of Defense Counsel (PADC) with the President’s Award at PADC’s Annual Meeting. This award was given in recognition of Dan’s leadership as President of PADC over the past year. Recognized as the oldest continuously operating local defense organization in the United States, PADC is comprised of over 300 attorneys and acts as a voice for its members and the clients they serve on emerging issues of interest.

Dan also received the Exceptional Performance Award from the Defense Research Institute (DRI), which is the largest international membership organization of attorneys defending the interests of businesses and individuals in civil litigation. DRI’s Exceptional Performance Award is given annually to an individual who has supported and improved the standards and education of the defense bar, and for having contributed to the improvement of the administration of justice in the public interest.

Mr. Ferhat may be contacted at ferhatd@whiteandwilliams.com

Private Statutory Cause of Action Under Florida’s Underground Facility Damage Prevention and Safety Act

Construction worker pinning something to uniform

Attorney David Adelstein analyzes the case Peoples Gas System v. Posen Construction, Inc.

July 11, 2021
David Adelstein - Florida Construction Legal Updates

Florida’s Underground Facility Damage Prevention and Safety Act is set forth in Florida Statutes Chapter 556. Any owner or operator of underground infrastructure as well as contractors that perform underground excavation and demolition operations are familiar (or, need to be familiar) with this Act and the requirements it imposes on them.

In a nutshell, this Act requires excavators to notify operators of underground facilities (e.g., pipelines, cables, sewers) through a notification system before excavating or demolishing an underground location. Then notification system gives the operator of the underground facility two days’ advance notice that an excavation will be taking place. After receiving this notice, the operator of the underground facility must mark the area where its infrastructure is located which could be affected by the underground excavation or demolition operations. The Act further imposes duties on excavators to use increased caution, supervise mechanized equipment, perform excavation and demolition operations in a careful an prudent manner, and to re-notify the notification system if the operator’s marking is no longer visible so the location of the operator’s underground facility can be re-marked.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

COVID-19 Vaccine Considerations for Employers in the Construction Industry

Medical staff walking through corridors

Attorney Maggie Spell discusses the implications of the Covid-19 Vaccine for Construction Employers.

July 11, 2021
Maggie Spell - ConsensusDocs

1. Can employers in the construction industry require employees to receive a COVID-19 vaccine as a condition of employment?

In short, it depends. Back in December 2020, the U.S. Equal Employment Opportunity Commission (EEOC) explained that, generally speaking (and under federal law), employers can require employees to receive the COVID-19 vaccine. However, there are a few caveats.

First, certain employees may need to be excused from a mandatory vaccination requirement as a reasonable accommodation unless it will present undue hardship. Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees with a covered disability that prevents them from receiving the vaccine. (Fact sheets for the COVID-19 vaccines include examples of some of the underlying medical conditions that may result in an accommodation request.) And under Title VII of the Civil Rights Act of 1964, employers are similarly required to provide reasonable accommodations to employees with sincerely held religious beliefs, practices, or observances that prevent them from getting the vaccine. Employers requiring the vaccination would be wise to consult with an experienced employment lawyer before denying an accommodation. Accommodation issues stemming from administration of the COVID-19 vaccine (and COVID-19 more generally) are likely to plague employers for a while, so getting ahead of this issue is key.

Ms. Spell may be contacted at mspell@joneswalker.com

The Almost-Collapse of a Sarasota, Florida Condo Building

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The Dolphin Tower almost collapsed in July of 2010.

July 11, 2021
Beverley BevenFlorez – CDJ Staff

Five years ago, residents of the Dolphin Tower in Sarasota, Florida were forced to evacuate after cracks appeared in their fourth-floor condominium units.

“My assistant calls me and says, ‘[Kris] thinks the building is falling down,’” David Karins of Karins Engineering told Sarasota Magazine. “I said, ‘I doubt that.’ Then I got there and saw what was going on and I said, ‘You know, the building may be falling down.’”

In July of 2010, city officials ordered all residents to evacuate. Five years and $11 million dollars in rehabilitation and residents were finally able to move back in last month.

The Herald-Tribune had previously interviewed John Bonacci, an engineer at Sarasota’s Karins Engineering: “I’d say yes, there was grave danger. It was luck that it didn’t come all the way down. Getting shoring in there quickly was instrumental in preventing it from collapsing.”

Read the full story, Sarasota Magazine...

Read the full story, Herald-Tribune...

NYT Points to Foreign Minister and Carlos Slim for Collapse of Mexico City Metro

Coworkers punching each other

NYT says that the collapse was likely due to bad welds.

July 11, 2021
Amy Stillman - Bloomberg

The collapse last month of a section of a Mexico City metro line that killed 26 people was likely due to poor construction by Mexican tycoon Carlos Slim’s Grupo Carso while foreign minister Marcelo Ebrard was mayor, according to a New York Times investigation.

Problems were identified in the original construction by Slim’s company Carso Infrastructure and Construction, and the collapse was probably caused by bad welding of the steel studs that served as linchpins of the structure, the report revealed. The job may have been rushed because Ebrard sought to open the subway before his mayoral term ended in 2012, the Times said.

ABC Chapter President Comments on Miami Condo Collapse

Wooden bridge collapse

Q&A With Peter Dyga

July 11, 2021
Rachel O'Connell - Construction Executive

Peter Dyga, ABC Florida East Coast Chapter president, has been one of the go-to experts in the aftermath of the shocking collapse of the Champlain Towers South condo building in Surfside, Florida.

As of publication, the death toll stands at 46 people and another 94 remain unaccounted for. On July 7, rescue officials announced the search would transition to a recovery operation at midnight on July 8, following the demolition of the remaining building over the July 4 weekend.

Dyga sat down with Construction Executive to discuss the critical nature of this tragedy and to review potential next steps.

Construction Executive: This incident has become national news. Why do you think the building collapse has garnered so much attention?
Peter Dyga: Because of the enormity of the tragedy and because it’s so uncommon for a building to collapse on its own.

Reprinted courtesy of Rachel O'Connell, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Claim for Business Interruption Based on Government Orders Precluding Use of Property Survives Motion to Dismiss

July 11, 2021
Tred R. Eyerly - Insurance Law Hawaii

The court found that the insured hair salon and barbershop plausibly alleged an entitlement to coverage for lost business income when the government orders restricted use of the property as intended. Seifert v. IMT Ins. Co., 2021 U.S. Dist. LEXIS 103420 (D. Minn. June 2, 2021).

Plaintiff's business was ordered to close by two executive orders issued in response to the growing number of COVID-19 cases in Minnesota. The policy covered the loss of business income due to a "suspension of your 'operations' . . . caused by direct physical loss of or damage to property . . ." Plaintiff sought coverage for his business losses. IMT Insurance Company denied the claim. Plaintiff sued and IMT moved to dismiss. The motion was initially granted without prejudice and plaintiff filed an amended complaint.

Mr. Eyerly may be contacted at te@hawaiilawyer.com

Out of the Shadows: Breaking the Stigma Surrounding Mental Health

July 11, 2021
Scott Wittkop - Construction Executive

It’s time to change the way the construction industry communicates about mental health to reduce the stigma and ensure that individuals get the help they need. Far too often, mental health issues such as anxiety, depression, mood swings and substance abuse disorders have been cloaked in a veil of secrecy and shame. Yet these issues pose significant risks to health, well-being, safety and productivity.

According to insurance broker Holmes Murphy & Associates, the construction industry is especially vulnerable to mental health challenges because of factors ranging from financial and family pressures to workplace injuries, chronic pain and substance abuse.

Reprinted courtesy of Scott Wittkop, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Janeen Thomas Installed as State Director of WWBA, Receives First Ever President’s Award

Trophy sitting on hill with green background (illustration)

Ms. Thomas was awarded with the association's first ever President’s Award.

July 11, 2021
Janeen Thomas - Lewis Brisbois

On June 9, 2021, New York Partner Janeen M. Thomas was installed as a State Director of the Westchester Women’s Bar Association (WWBA) for the 2021-2022 term. In this role, Ms. Thomas will represent the WWBA at statewide meetings of the Women’s Bar Association of the State of New York (WBASNY).

During the installation ceremony, Ms. Thomas was awarded with the association's first ever President’s Award by WWBA Outgoing President Judge Lisa Margaret Smith of the Southern District of New York (retired), for her service as Co-Chair of the WWBA Diversity & Inclusion Committee during the 2020-2021 term. During the award presentation, Ms. Thomas was recognized for organizing three programs, including:

“A Panel Discussion on Police Reform: New York’s Executive Order for Necessary Change,” which featured Dr. Jim Bostic, Minister, Author and Executive Director, Nepperhan Community Center; Jason Clark, Esq., Deputy, New York State Attorney General’s Office and Past-President, Metropolitan Black Bar Association; Kitley S. Covill, Esq., Westchester County Legislator, District 2, Prof. Randolph McLaughlin, Esq., Of Counsel, Newman Ferrara LLP and Professor, Pace University Law School and Maria L. Imperial, Esq., CEO, YMCA White Plans & Central Westchester;

Ms. Thomas may be contacted at Janeen.Thomas@lewisbrisbois.com

How to Fix America

Vintage American Flag

Take a road trip from New York to California to see infrastructure projects with the potential to make cities more livable and equitable.

July 11, 2021
Bloomberg CityLab

In 2011, then-President Barack Obama stood in front of the deteriorating Brent Spence Bridge linking Ohio and Kentucky with a plea to Republican leadership: Pass the jobs bill to rebuild America. (It did not pass.) Six years later, when asked about the same bridge, then-President Donald Trump answered “we’re going to get it fixed.” (It did not get fixed.)

It took two trucks colliding on the Brent Spence’s lower deck — leading to a massive fire — just before 3 a.m. on Nov. 11, 2020, for work to begin. A post-crash inspection found the bridge structurally sound, and more than $3 million in repairs were made by year-end. But with traffic volume at around double its intended capacity, much more work is needed to alleviate persistent jams and accidents.

Such has been the state of infrastructure in the U.S. for decades — fixes get put off until they’re absolutely necessary, and U.S. airports, roads and public transportation draw frequent comparisons to those in nations with far fewer resources. Meanwhile, countries in Europe, Asia and the Middle East have leapt ahead with so-called smart cities, high-speed trains and eco-friendly buildings. In 2019, the U.S. ranked 13th in the world in a broad measure of infrastructure quality — down from fifth place in 2002, according to the World Economic Forum’s Global Competitiveness Report.

Ex-Turner Exec Gets 46 Months for Bloomberg Construction Bribes

Prison cell background

Work at Bloomberg LP headquarters building in mid-town Manhattan involved bid collusion and bribes, prosecutors charged.

July 11, 2021
Eydie Cubarrubia - Engineering News-Record

A third New York City-based construction executive was sentenced to federal prison June 15, receiving 46 months, as part of the $15-million bribery scheme involving interiors work for financial giant Bloomberg LLP at its Manhattan headquarters.

Reprinted courtesy of Eydie Cubarrubia, Engineering News-Record

Ms. Cubarrubia may be contacted at cubarrubiae@enr.com

Read the full story...

House Approves $715B Transportation and Water Infrastructure Bill

Passed text with green check mark

The INVEST in America bill passed the House on July 1 on a 221-201 vote.

July 11, 2021
Tom Ichniowski - Engineering News-Record

Another building block for infrastructure legislation has moved into place with the House’s approval of a five-year $715-billion surface transportation and water infrastructure package.

Reprinted courtesy of Tom Ichniowski, Engineering News-Record

Mr. Ichniowski may be contacted at ichniowskit@enr.com

Read the full story...

A Court-Side Seat: SCOTUS Clarifies Alien Tort Statute and WOTUS Is Revisited

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A brief account of some of the notable U.S. environmental and administrative law cases recently decided.

July 11, 2021
Anthony B. Cavender - Gravel2Gavel

What follows is a brief account of some of the notable U.S. environmental and administrative law cases recently decided.


Nestle USA, Inc. et al. v. Doe, et al.
The Supreme Court has decided another important case interpreting the Alien Tort Statute. Released on June 17, 2021, this decision reverses the Ninth Circuit which had ruled that the respondents—six individuals who alleged they were child slaves employed on Ivory Coast cocoa farms, could sue the American-based companies for aiding and abetting child slave labor. Without dissent, the Court rejected this reading of the ATS and affirmed its own recent rulings on the scope of the ATS.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Hits Keep Coming to Boston's Fenway Neighborhood

July 11, 2021
Scott Van Voorhis - Engineering News-Record

Just a decade or two ago, Boston's Fenway Park stadium was surrounded by a smattering of surface parking lots, fast-food joints, gas stations and sports bars, an odd slice of Route 1-style suburban sprawl in the heart of the city.

ENR may be contacted at ENR.com@bnpmedia.com

Cal/OSHA Approves COVID-19 Emergency Temporary Standards; Executive Order Makes Them Effective Immediately

Reject Approve buttons

Subject to certain exceptions, the revised ETS eliminates distancing and barrier requirements in the workplace, regardless of vaccination status.

July 11, 2021
Leila S. Narvid - Payne & Fears LLP

On June 17, 2021, California's Occupational Safety and Health Standards Board (Standards Board) passed amended COVID-19 Emergency Temporary Standards (ETS). Gov. Gavin Newsom issued an Executive Order to make the amended ETS effective as soon as filed with the Secretary of State. The Office of Administrative Law (OAL) filed them, and the Secretary of State posted them, making the ETS effective immediately. These changes attempt to bring the ETS in alignment with recent changes to California Department of Public Health Order and the latest guidance from the Center for Disease Control (CDC). Highlights of the changes to the ETS can be found here.

Face Coverings in the Workplace; Elimination of Physical Distancing

Notably, fully vaccinated employees do not have to wear a face covering indoors except in limited circumstances. Unvaccinated workers will still need to wear face coverings indoors (unless they are alone in a room or eating and drinking) and in shared vehicles. All employees regardless of vaccination status do not have to wear masks outdoors. Unvaccinated employees must be trained that face coverings are recommended outdoors for individuals who are not fully vaccinated when six feet of physical distance cannot be maintained.

Ms. Narvid may be contacted at ln@paynefears.com

Mediation Clause Can Stay a Miller Act Claim, Just Not Forever

Clocks in black background

Attorney Christopher G. Hill discusses United States of America, for the use of Precision Air Conditioning of Brevard Inc. v. Cincinnati Insurance Company.

July 11, 2021
Christopher G. Hill - Construction Law Musings

It seems to be Miller Act time here at Construction Law Musings, not to mention in the Federal District Courts here in Virginia. Last week I discussed what sort of work can form the basis for a Miller Act claim. This week I am discussing the effect of a mandatory mediation contract clause on the same type of claim. I have discussed both the benefits and the possible negative consequences of the inclusion of such a clause in your construction contract.

The recent case out of the Norfolk, Virginia Federal District Court recently explored the related question of whether such a clause can be enforced in the context of a Miller Act claim. In United States of America, for the use of Precision Air Conditioning of Brevard Inc. v. Cincinnati Insurance Company, the Court was confronted with a possible conflict between the legal requirement that any waiver of the right to pursue a Miller Act claim must be explicitly waived in writing and the clear contractual language between the general contractor and the plaintiff stating that mediation was a condition precedent to suit.

Mr. Hill may be contacted at chrisghill@constructionlawva.com

26th Annual Oregon Construction Law Seminar

July 11, 2021
Beverley BevenFlorez – CDJ Staff

This annual seminar will cover important topics such as Alternative Dispute Resolution, Construction, Ethics, Insurance, Litigation, and Taxation. It’s relevant for those who practice Construction Law in Oregon or those involved in the Construction Industry such as Architects, Attorneys, Contractors, Engineers, and Government Employees.

September 23rd-24th, 2021
Royal Sonesta Portland Downtown
506 SW Washington St
Portland, OR 97204


Arrange No Cost Consultation







Construction Defect News Channel - The Latest News and Video From The Construction Defect Journal

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Surfside Building Official Who Was on Roof 14 Hours Before Collapse Says He Noticed No Warning Signs

WSVN-TV reports the town’s top building official, Jim McGuinness, was on the roof of the building just 14 hours earlier.

Miami River Condo Owners Hit with $1 Million Special Assessment for Concrete Fix

WPLG Local 10 reports the work to shore up support beams will take about a year at the River Run South, which sits on the Miami River.

San Francisco's Tallest Residential Building is Sinking

9News reports a sinking San Francisco high-rise is receiving renewed scrutiny after the Surfside condo collapse.

Structural Engineering Firm Avoided Condo Collapse in Sarasota Before Spotting Issues in Surfside

10 Tampa Bay reports the tragedy in Surfside has condo associations across the country evaluating building safety.

Exclusive: County Officials Order Inspection of Marina City Club Towers in Marina Del Rey

David Goldstein of CBS Los Angeles reports on the county's efforts to have the Marina City Club Towers condominium inspected after the tragic collapse of a condo building in Florida last week.

Why Do Concrete Buildings Collapse?

In the aftermath of the Champlain Towers collapse in Miami, Roger of Skill Builder takes a look at why concrete fails and what can be done to prevent future disasters.

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