CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

DC Circuit Upholds EPA’s Latest RCRA Recycling Rule

September 23, 2019 — Anthony B. Cavender - Gravel2Gavel
On July 2, 2019, the U.S. Court of Appeals for the District of Columbia Circuit decided the case of California Communities Against Toxics, et al. v. EPA. In this decision, the court rejected the latest petition to strike or vacate EPA’s 2018 revisions to the Resource Conservation and Recovery Act (RCRA) hazardous waste recycling rules. In 1985, EPA promulgated a new regulatory definition of “solid waste,” which is the linchpin of the agency’s very stringent hazardous waste management rules. (See the rules located at 40 CFR Sections 260-268.) Unless a material is a “solid waste” as defined by the rules, it cannot also be a hazardous waste. The 1985 rules grappled with the challenges posed by recycling practices, and attempted to distinguish between legitimate recycling which is not subject to hazardous waste regulation, and other more suspect forms of recycling. The rules are complex and replete with nuance. In doing so, EPA was adhering to RCRA’s statutory mandate that it develop appropriate rules to govern the treatment, storage and disposal of hazardous waste, while also promoting “properly conducted recycling and reuse.” The DC Circuit reviewed the 1985 rules in the seminal case of American Mining Congress v EPA, 824 F.2d 1177 (1987), (AMC) and stressed that only those materials that were truly discarded could be regulated as solid waste; for instance, those materials that were destined for immediate recycling or recovery in an ongoing production process were not discarded and hence were not solid waste. Over the years, the court has struggled to clarify the basic holding of AMC in numerous cases while EPA has frequently revised and amended the RCRA rules, and in particular the definition of solid waste, in an attempt to balance the policies mandated by the statute. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Housing Markets Continue to Improve

February 11, 2013 — CDJ STAFF
The National Association of Home Builders reports that for a sixth consecutive month there has been an increase in the number of housing markets that have shown improvement. The January report saw 242 improving markets, which in February grew to 259. The NAHB notes that there are now improving markets in every state, “suggesting that the housing recovery has substantial momentum.” Not all markets showed continued improvement. Three metropolitan areas were dropped from the list of improving markets, but another twenty were added. The NAHB has been tracking this data since September 2011, when there were only twelve improving markets through the whole country. Read the court decision
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Client Alert: Stipulated Judgment For Full Amount Of Underlying Claim As Security For Compromise Settlement Void As Unenforceable Penalty

March 26, 2014 — David W. Evans, Krsto Mijanovic, and Gregory M. Smith-Haight Brown & Bonesteel LLP
In Purcell v. Schweitzer (No. D063435 - filed February 24, 2014, certified for publication March 17, 2014), the Fourth District Court of Appeal upheld an order setting aside a stipulated default judgment for the full amount of plaintiff’s claim which had been agreed to by the parties to a settlement agreement, finding that it constituted an unenforceable penalty because the amount bore no reasonable relationship to the settling party’s actual damages resulting from a breach of the settlement agreement. In an agreement settling a breach of contract action seeking $85,000 in damages based on an unpaid debt, the plaintiff agreed to settle the claim and to accept $38,000 in 24 monthly installments, including interest on the unpaid principal at 8.5 percent. The agreement provided that payments were due on the first day of each month and to be considered “timely,” had to be received by the fifth day of each month. If any payment was not made on time, it was to be considered a breach of the entire settlement agreement, making the entire $85,000 original liability due pursuant to a stipulation for entry of judgment for such amount. The stipulation included language to the effect that the $85,000 figure accounted for the “economics” of further proceedings. The agreement also specified that the foregoing provision did not constitute an unlawful “penalty” or “forfeiture” and that defendant waived any right to an appeal and any right to contest or seek to set aside such a judgment. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys David W. Evans, Krsto Mijanovic, and Gregory M. Smith Mr. Evans may be contacted at devans@hbblaw.com; Mr. Mijanovic may be contacted at kmijanovic@hbblaw.com, and Mr. Smith may be contacted at gsmith@hbblaw.com Read the court decision
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Zillow Topping Realogy Shows Web Surge for Housing Market

July 30, 2014 — Prashant Gopal and John Gittelsohn – Bloomberg
Zillow Inc. (Z)’s purchase of Trulia Inc. makes the online company such a force in U.S. real estate that its market value now surpasses that of Realogy Corp., owner of renowned brokerage brands from Coldwell Banker to Century 21. Zillow, the biggest U.S. real estate website, has seen its market value jump to about $5.83 billion from $4.99 billion on July 23, the day before Bloomberg News reported the deal talks with rival Trulia. Realogy, the largest residential brokerage operator, has a market value of about $5.47 billion, compared with $5.67 billion last week, data compiled by Bloomberg show. The shift underscores the growing role of the Web in U.S. home sales as buyers start their hunt for homes and mortgages online and rely less on real estate agents, a migration that has taken longer than in industries such as music or travel. While Zillow is unlikely to compete directly with brokers, whose ad dollars are its top revenue source, buying Trulia (TRLA) gives it more command over marketing fees, sparking concerns among Realtors such as Stephen FitzMaurice that costs will rise. Mr. Gopal may be contacted at pgopal2@bloomberg.net; Mr. Gittelsohn may be contacted at johngitt@bloomberg.net Read the court decision
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Reprinted courtesy of Prashant Gopal and John Gittelsohn, Bloomberg

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Eye on Housing Examines Costs of Green Features

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
The National Association of Home Builders’ Eye on Housing reported that it costs more to build a green home, however, builder’s experience with green techniques reduces costs. According to McGraw Hill Construction survey data (as quoted by Eye on Housing), “the incremental cost for builders to construct green homes was 8% in 2013. For remodelers, green projects raised costs by 9% on average.” Furthermore, “McGraw Hill’s analysis found that the cost to build green varied to some degree by the amount of green construction undertaken.” Read the court decision
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Businesspeople to Nevada: Revoke the Construction Defect Laws

March 01, 2012 — CDJ STAFF

The Nevada chapter of the National Federation of Independent Businesses has said that Nevada’s construction defect and minimum wage laws are hampering job growth. The organization conducted a survey, and although only about two percent of the members responded, they passed the opinions of the group on to Governor Brian Sandoval. Sandoval has said, according to the report by Fox News Reno, that he wants the state to be more business friendly. He supports reforms to Nevada’s construction defect laws, saying that he’d “like to see some reform” on the issue of mandatory attorney’s fees.



Randi Thompson, the spokesperson for the Nevada chapter of the National Federation of Independent Businesses, said that members of her organization would like to see current Nevada construction defect law revoked. She described current law as “driven towards lawyers and not toward protecting consumers.”

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The Hidden Price of Outdated Damage Prevention Laws: Part I

November 21, 2018 — Brigham A. McCown - Construction Executive
Excavators know that dialing 811 triggers a process that requires all utilities operating in the service area to find and mark the location of their underground facilities so that they are not damaged during the excavation process. In addition, marking the location of the utilities is intended to keep the public safe, for instance by preventing an excavator from striking a gas line. But excavators also know that in most states, the laws and regulations that govern these procedures are weak and that enforcement is even weaker. It’s an unfortunate fact that excavators and the public – typically the least culpable parties – suffer the consequences of weak damage prevention laws and lack of strong enforcement regimes. Reprinted courtesy of Brigham A. McCown, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Additional Elements a Plaintiff Must Plead and Prove to Enforce Restrictive Covenant

April 19, 2021 — David Adelstein - Florida Construction Legal Updates
Florida Statute s. 542.335 is a statute that deals with restrictive covenants in contracts that impose a restraint on trade. It is an important statute to determine invalid restraints on trade that unreasonably or unfairly prevent competition. Any invalid restraint on trade is unenforceable. Restrictive covenants–or covenants in agreements that restrict you or prevent you from doing something–may unsuspectingly be included in contracts or the impact of the restrictive covenant may not be appreciated at the onset. A party seeking to enforce a restrictive covenant in a contract has the additional burden of PROVING the validity and reasonableness of the restrictive covenant:

Under section 542.335, three requirements must be satisfied for a restrictive covenant to be enforceable: (1) the restrictive covenant must be “set forth in a writing signed by the person against whom enforcement is sought”; (2) the party seeking to enforce the restrictive covenant “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant”; and (3) the party seeking to enforce the restrictive covenant “shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.”

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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