FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

DC Circuit Rejects Challenge to EPA’s CERCLA Decision Regarding Hardrock Mining Industry

September 23, 2019 — Anthony B. Cavender - Gravel2Gavel
In a decision that will likely be welcomed by the electrical power, chemical manufacturing, and petroleum and coal products manufacturing industries, on July 19, 2019, the U.S. Court of Appeals for the District of Columbia Circuit held in the case of Idaho Conservation League et al., v. Wheeler, that EPA acted reasonably in deciding not to issue CERCLA financial responsibility regulations for the hardrock mining industry. CERCLA (a.k.a., Superfund) was enacted in 1980 and amended in 1986, and Section 108(b) of CERCLA provides that EPA shall promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility “consistent with the degree and duration of risk” associated with the production, transportation, treatment, storage or disposal of hazardous substances. However, no action was taken to implement Section 108(b) until 2009, and then only as the result of litigation challenging EPA’s failure to act. EPA and the petitioners agreed to a schedule by which the agency would propose financial responsibility rules for the hardrock mining industry—which was the initial class of industry facilities selected for the possible application of these rules—and the DC Circuit approved this schedule in 2016, which contained the court’s caveat that EPA retained the discretion not to issue any rule at the conclusion of the rulemaking. 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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Real Estate & Construction News Round-Up (02/08/23) – The Build America, Buy America Act, ESG Feasibility, and University Partnerships

February 27, 2023 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
This week’s round-up explores President Joe Biden’s recent State of the Union address and plans for the Build America, Buy America Act, the feasibility of real estate companies achieving their ESG goals, and how developers, lenders, and tenants are partnering with universities to solve real estate challenges.

• During his annual State of the Union address, President Joe Biden detailed his Build America, Buy America plans and standard to require all construction materials on federal infrastructure projects to be made in the United States. (Jennifer Goodman & Zachary Phillips, Construction Dive)
• Speculation surrounding the economic environment and real estate stability is testing the feasibility and resilience of the environmental, social and corporate governance (ESG) framework used by corporations to measure their societal impact. (Anna Staropoli, Commercial Observer)
• Adopting Web3 and decentralization in the real estate industry is projected to bring about significant changes and improvements. (David Bitton, Forbes)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Building in the Age of Technology: Improving Profitability and Jobsite Safety

June 10, 2019 — Maria Laguarda-Mallo - Construction Executive
New virtual design and construction (VDC) technologies are quickly shifting how the AEC industry is designing, documenting and building. From the use of new software, apps and laser scanners, to the deployment of drones and robots, many early adopters are benefitting from fully integrating these solutions into their workflows. Virtual and Augmented Reality In an industry where collaboration is becoming increasingly important, regardless of the firm size, VR is enabling stakeholders to “see” and “walk” through a building before ground is broken. In other words, teams can foresee issues, ask questions and provide feedback in the preconstruction phase. The inclusion of AR and VR in the daily workflows of AEC firms signifies expedited decision-making, reduced rework and real-time collaboration, which in turn translates to a reduction of unexpected costs. Reprinted courtesy of Maria Laguarda-Mallo, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Ms. Laguarda-Mayllo may be contacted at maria.laguarda-mallo@viatechnik.com

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California insured’s duty to cooperate and insurer’s right to select defense counsel

April 14, 2011 — CDCoverage.com

In Travelers Property Casualty Co. v. Centex Homes, No. C 10-02757 (N.D. Cal. April 1, 2011), general contractor Centex was sued by homeowners for construction defects. Centex tendered its defense to Travelers as an additional insured under policies issued by Travelers to two Centex subcontractors. Travelers agreed to defend Centex under a reservation of rights and selected defense counsel to defend Centex. Centex refused to accept the defense, asserting that it was entitled to select defense counsel. Travelers filed suit against Centex seeking a declaratory judgment that Centex had breached the duty to cooperate condition in the Travelers’ policy.



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Reprinted courtesy of CDCoverage.com

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Mandatory Energy Benchmarking is On Its Way

April 22, 2019 — Christopher G. Hill - Construction Law Musings
We have discussed the issue of benchmarking and energy reporting on several occasions here at Musings. As the January 18, 2010 issue of ENR Magazine discusses, now cities and states are getting on board in a big way. Washington, D.C. began requiring building owners to use the EPA Energy Star Portfolio Manager tool on January 1, 2010 and New York City passed a similar measure in December. The D.C. law is the first to require mandatory public disclosure of energy performance. Such disclosure will create a public database of energy performance data. While I understand that this data and its reporting will create energy accountability in a way that non-disclosure of this data would not, the possibilities for misuse or uses that impact the construction world abound. This energy reporting is a step beyond that of the LEED program in that the data is not just reported to the USGBC, but to a public database. As such, the ease of access will impact contracts and contractors in an even bigger way than the USGBC requirements. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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D.C. Decision Finding No “Direct Physical Loss” for COVID-19 Closures Is Not Without Severe Limitations

August 24, 2020 — Michael S. Levine & Michael L. Huggins - Hunton Andrews Kurth
On August 6, 2020, in Rose’s 1 LLC, et al. v. Erie Insurance Exchange, Civ. Case No. 2020 CA 002424 B, a District of Columbia trial court found in favor of an insurer on cross motions for summary judgment on the issue of whether COVID-19 closure orders constitute a “direct physical loss” under a commercial property policy. At its core, the decision ignores key arguments raised in the summary judgment briefing and is narrowly premised on certain dictionary definitions of the terms, “direct,” “physical,” and “loss.” Relying almost entirely on those definitions – each supplied by the insureds in their opening brief – the court set the stage for its ultimate conclusion by finding “direct” to mean “without intervening persons, conditions, or agencies; immediate”; and “physical” to mean “of or pertaining to matter ….” The court then apparently accepted the policy’s circular definition of “loss” as meaning “direct and accidental loss of or damage to covered property.” Importantly, however, despite recognizing the fundamental rule of insurance policy construction that the court “must interpret the contract ‘as a whole, giving reasonable, lawful, and effective meaning to all its terms, and ascertaining the meaning in light of all the circumstances surrounding the parties at the time the contract was made,’” the court apparently ignored the insureds’ argument that the term “property damage” is specifically defined in the policy to include “loss of use” without any specific reference to physical or tangible damage. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michael L. Huggins, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Huggins may be contacted at mhuggins@HuntonAK.com Read the court decision
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Inability to Confirm Coverage Supports Setting Aside Insured’s Default Judgment on Grounds of Extrinsic Mistake

January 21, 2019 — Christopher Kendrick & Valerie A. Moore - Haight Brown & Bonesteel LLP
In Mechling v. Asbestos Defendants (No. A150132, filed 12/11/18), a California appeals court affirmed the trial court’s grant of an insurer’s motion to set aside default judgments entered against its defunct insured pursuant to the trial court’s inherent, equitable power to set aside defaults on the ground of extrinsic mistake, thereby allowing the insurer to intervene and defend its own interests in the case. In Mechling, Fireman’s Fund insured Associated Insulation of California, which was named as a defendant in asbestos litigation filed in 2009. Associated had ceased operating in 1974, but was somehow successfully served with the complaint and defaulted, leading to default judgments of several million dollars. Notice of the judgments was served on Associated but not Fireman’s Fund. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Eleventh Circuit Holds that EPA Superfund Remedial Actions are Usually Entitled to the FTCA “Discretionary Function” Exemption

February 18, 2019 — Anthony B. Cavender - Gravel2Gavel
An unusual Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, known also as Superfund) remedial action has resulted in a broad ruling that Environmental Protection Agency (EPA) remedial actions and their implementation by EPA contractors may be entitled to broad protection from liability insofar as the Federal Tort Claims Act (FTCA) is involved. The case is Gadsden Industrial Park LLC v. United States of America, CMC Inc., and Harsco Corporation, an unpublished opinion released by the court on November 30, 2018. After the Gulf States Steel Corporation, the owner and operator of a former steel manufacturing facility located in Gadsden, AL, declared bankruptcy, in 2002, Gadsden Industrial Park LLC (Gadsden) purchased 434 acres of the 761 acre site, as well as assets located in what is described as the “Excluded Real Property”—recyclable materials generated in the steel making process known as “kish” and “slag,” and a track of a railroad line located in this area. However, in the 2007 or 2008, the Eleventh Circuit observes, EPA began a CERCLA remedial cleanup action on the Excluded Real Property and barred Gadsden from entering the Excluded Real Property to make use of its new assets. 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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