The Site Report - Construction Law Insights, Issue 5, May 2023

Stephanie Eaton, Steven Hemric, Julian Neiser, Derrick Price Williamson
Spilman Thomas & Battle, PLLC
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Issue 5, 2023

Welcome to the fifth issue issue of the year for The Site Report.

We have several key attorney announcements as we kick off this issue of our construction law newsletter.

We hope you enjoy this issue and, as always, thank you for reading.

Stephanie U. Eaton - Co-Chair, Construction Group; Vice Chair of Southern Offices, Litigation Department; Editor, The Site Report

and

Julian E. Neiser - Co-Chair, Construction Group; Vice Chair of Northern Offices, Litigation Department

US Lawmakers Call to Modernize OSHA as Hundreds Die on the Job Each Day

“Reintroduced federal legislation pushes to expand Osha coverage in 24 states not currently covered by the act.”

Why this is important: On April 28, 2023, H.R.-2998, Protecting America’s Workers Act (“PAWA”), was reintroduced in an effort to boost workplace safety and expand the coverage of the Occupational Safety and Health Act (“OSHA”). Most notably, OSHA coverage would expand to state and local government employees and increase monetary penalties for “high gravity” OSHA violations.

Other provisions of PAWA include:

  • Authorizing felony penalties against employers “who knowingly commit OSHA violations that result in death or serious bodily injury.” Those penalties could extend to corporate officers and directors.
  • Requiring OSHA to investigate all cases of death and serious injuries that occur within a place of employment.
  • Updating obsolete consensus standards that were adopted by OSHA in the 1970s.
  • Strengthening whistleblower protections.
  • Expanding injury and illness records that employers must report and maintain.
  • Mandating that employers correct hazardous conditions in a “timely manner.”

The “high-gravity” OSHA violations would include serious or willful violations that cause death or serious injury.

PAWA has been referred to the House Committees on Education and Labor for consideration. As further developments occur, we will keep you advised. --- Heather M. Garrison 

Construction Industry Benefits from U.S. Factory-Building Boom

“The expansion is reaching manufacturers of construction equipment, trucks and other industrial goods, and is providing a boost to the U.S. economy despite rising interest rates and slowdowns in other sectors.”

Why this is important: The “factory-building boom” benefits the construction industry on multiple fronts. In the immediate term, the new projects are both increasing the amount of available work and continuing to drive demand for materials and equipment that are in high demand. Looking to the long-term, however, some of these new factories will help alleviate the supply issues that have been plaguing the industry and driving up material and equipment prices. Industrial construction projects can be exceptionally complex, particularly when the planned factory is on the cutting edge or intended to manufacture a specialty product. It is imperative that everyone involved on the project—from the owner to the designer to the contractor and subcontractors—negotiate detailed contracts on the front end, thoroughly document the project while it is in progress, and begin closeout preparations early. This will help ensure that the project is either successful or, if a dispute is inevitable, that conditions were documented and every party’s rights are clear. Engaging a construction attorney to assist with project “check-ins” and assistance with project documentation and change orders while the project is in progress can be a powerful tool to help cut issues off before they fester and turn into long, costly litigation. --- Steven C. Hemric

The Full Picture on Construction Safety: AI-Powered Video Telematics

“AI-powered intelligent cameras are taking risk detection to a whole new level.”

Why this is important: The use of heavy equipment, machinery, and a variety of motorized vehicles is required in the construction industry. Unfortunately, construction work in the U.S. has resulted in a frightening statistic: although construction workers represent 7.3 percent of the U.S. workforce, they are disproportionately involved in workplace accidents, with 21.7 percent of workplace fatalities involving construction workers. Reasons for this terrible statistic include the use of motor vehicles, operation of moving parts in the machinery and equipment on job sites, opportunities for human error, and often unforeseen risks. To combat this grim statistic, and improve safety for construction workers, some construction industry teams are turning to technology.  

What kind of technology? Video telematics, which is a combination of AI-powered intelligent cameras and sensors that can, for example, allow construction equipment operators to have a 360-degree view of their surroundings, and can provide real-time data for analysis by the site manager who is monitoring the work, but who is physically located elsewhere. Moreover, the use of AI-enhanced smart cameras expands the range of the scan for risks up to 65 feet away from the activity so the operator and the individuals in a potential danger zone have more reaction time to avoid collisions. Risk managers can review recorded footage to plan and stage work on the job site based upon data that is captured with mobile digital video recorders (“MDVRs”) that can be collected by a cloud-based platform on a 24/7 basis. If an accident occurs on the job site, the use of both video footage and telematics data can provide valuable information on what happened, whether it was operator error, equipment malfunction, or a coordination mishap. The data can also be used for safety training. OSHA’s guidelines for workplace health and safety favor proactive action by those in charge of work sites, including the use of video to detect and reduce risks. The use of AI-powered video telematics can be incorporated to enhance worker safety to make a real dent in the construction industry statistics involving serious injuries and fatalities. --- Stephanie U. Eaton

New York Poised to Pass First Statewide Law Banning Natural Gas in New Buildings

“The law would likely take effect in 2026 for most new buildings under seven stories and in 2029 for larger buildings.”

Why this is important: The article details a pending New York state law that will ban most fossil fuel-based appliances and stoves in new construction for buildings under seven stories in 2026 and for larger buildings beginning in 2029. The effect would be to eliminate gas stoves, oil and gas furnaces, and propane heating. The purpose is to transition to what the article refers to as “climate friendly” appliances. The article notes that states like California and Washington have used building code revisions to effectuate “electrification,” but that New York will become the first state to pass a law mandating zero-emissions new homes and buildings. The law could include some exemptions and would not currently apply to existing residences. Importantly, however, the article acknowledges opponents who cite, among other things, resulting increased costs for residents with respect to electricity and new construction, as well as the likelihood of legal challenges. The article omits any material reference to the fact that implementation of electrification initiatives like these will ultimately require more electric power production and an enhanced electric grid, which raise additional cost and emissions concerns. --- Derrick Price Williamson

31 Pennsylvania Lakes to Undergo $88 Million in Major Improvements. Here's What's Planned.

“Over the last 12 years, the agency has improved 16 lakes.”

Why this is important: Pennsylvania is revamping its entire portfolio of dams in an $88 million project that could create significant benefits for civil and geotechnical contractors. The Fish and Boat Commission announced that the project will rehabilitate 31 lakes across Pennsylvania over the next few years, which includes every dam under Commonwealth supervision. By comparison, the Commission had improved 16 lakes over the past 12 years. These are multi-phase projects that involve lowering lakes, moving fish and other aquatic life, performing civil work, and then restoring the lakes. Also, the Commission reports a number of embankment improvements and some spillway construction. The status of these projects is varied. Nine are in planning, 10 are in design, two are in permitting, and two are in construction. --- Julian E. Neiser 

Remote Building Inspections Beneficial for Rural Governments

“It is not uncommon for counties to face backlogs of months, creating frustrated residents, business owners and developers.”

Why this is important: Remote inspections burst onto the scene during the pandemic, and code enforcement offices are continuing to investigate how remote inspections can help them keep up with demand for inspections. Remote inspections can help speed up project closeout and avoid the delays sometimes associated with waiting on an inspector to be able to make it to a project. However, remote inspections also bring new potential issues to a project. Without being physically on site, an inspector may not be as thorough or may miss seeing some issues that are difficult to observe remotely (depending on the technology being used by the inspector). Being aware of the practices of the authority having jurisdiction over your project, including whether the AHJ using remote inspections and, if so, what technology the AHJ uses, can help you prepare for more successful project closeout and, particularly for project owners, any additional inspections that may be prudent. --- Steven C. Hemric

Only 140 Hours Needed to Put Together ‘Europe’s Largest 3D-Printed Building’

“The 3D-printed building is expected to be completed by July and will house computer servers.”

Why this is important: It is difficult to imagine the construction of a completed 2-story, 180 foot long by 36 foot wide building in just 3 ½ work weeks. However, in Heidelberg, Germany, that is exactly what the Kraus Gruppe is doing. Even more impressive is that the building – which will become a data center – is made of concrete that is formed from 100 percent recycled materials. How is this possible? Krause Gruppe is using 3D printing to construct the building efficiently and creatively, including 18 degree overhangs that would not be feasible using traditional construction methods. The interior will be painted by a painting robot developed by German paint manufacturer Deutsche Amphibolin-Werke.  

When completed, this curvy building will be another example of how 3D printing technology and improvements in building materials can reduce construction time, labor and carbon dioxide emissions compared to traditional construction. 3D printed buildings and houses are very significant to the construction industry as a whole, since this type of construction offers a viable solution to existing shortfalls in the construction workforce, persistent housing shortages, and mandates by governments, building code changes and public pressure to reduce carbon emissions within the construction sector. Krause Gruppe’s new data center will join existing 3D printed buildings in the Netherlands, China, America and elsewhere in the world in paving the way for the future of the construction industry. --- Stephanie U. Eaton

 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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