CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

EPA Will Soon Issue the Latest Revision to the Risk Management Program (RMP) Chemical Release Rules

February 10, 2020 — Anthony B. Cavender - Gravel2Gavel
On November 21, 2019, EPA released a pre-publication copy of its Reconsideration of the revised Risk Management Program (RMP) Rules. In an accompanying statement, the agency noted that it has taken steps to “modify and improve” the existing rule to remove burdensome, costly and unnecessary requirements while maintaining appropriate protection (against accidental chemical releases) and ensuring responders have access to all of the necessary safety information. This action was taken in response to EPA’s January 13, 2017 revisions that significantly expanded the chemical release prevention provisions the existing RMP rules in the wake of the disastrous chemical plant explosion in West, Texas. The Reconsideration will take effect upon its publication in the Federal Register. Background As recounted by the D. C. Circuit in its August 2018 decision in the case of Air Alliance Houston, et al. v. EPA, in 1990, the Congress amended the Clean Air Act to force the regulation of hazardous air pollutants (see 42 USC Section 7412). An initial list of these hazardous air pollutants was also published, at Section 7412 (b). Section 112(r) (codified at 42 USC Section 7412 (r)), authorized EPA to develop a regulatory program to prevent or minimize the consequences of a release of a listed chemical from a covered stationary source. EPA was directed to propose and promulgate release prevention, detection, and correction requirements applicable to stationary sources (such as plants) that store or manage these regulated substances in amounts determined to be above regulated threshold quantities. EPA promulgated these rules in 1996 (see 61 FR 31668). The rules, located at 40 CFR Part 68, contain several separate subparts devoted to hazard assessments, prevention programs, emergency response, accidental release prevention, the development and registration of a Risk Management Plan, and making certain information regarding the release publicly available. EPA notes that over 12.000 RMP plans have been filed with the agency. In January 2017, in response to the catastrophe in West, EPA issued substantial amendments to these rules, covering accident prevention (expanding post-accident investigations, more rigorous safety audits, and enhanced safety training), revised emergency response requirements, and enhanced public information disclosure requirements. (See 82 FR 4594 (January 13, 2017).) However, the new administration at EPA, following the submission of several petitions for reconsideration of these revised rules, issued a “Delay Rule” on June 14, 2017, which would have extended the effective date of the January 2107 rules until February 19, 2019. On August 17, 2018, the Delay Rule was rejected and vacated by the D.C. Circuit in the aforementioned Air Alliance case (see 906 F. 3d 1049 (DC Circuit 2018)), which had the effect of making the hotly contested January 2017 RMP revisions immediately effective. 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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Home Prices Expected to Increase All Over the U.S.

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
According to a survey of the National Association of Realtors (as quoted by the Housing Wire), home prices are expected “to increase in all states and the District of Columbia over the next 12 months, with most of the heavy growth in Florida, Texas, and California, among other states.” The highest expected price growth was “in states with low inventory levels, strong cash sales, and strong growth sectors (e.g., technology, oil).” Read the court decision
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Million-Dollar U.S. Housing Loans Surge to Record Level

July 30, 2014 — Alexis Leondis – Bloomberg
Banks are handing out mortgages of as much as $10 million to the wealthy in record numbers while first-time homebuyers struggle to get loans. Erin Gorman, managing director at Bank of New York Mellon Corp., said she’s fielding more requests for home loans of at least $2 million than ever before. She recently provided a mortgage of more than $6 million for a client’s purchase of a second property in Colorado. “These high-net-worth borrowers do act differently than first-time buyers, who borrow because they have to,” said Gorman, who serves as the national mortgage sales director at Bank of New York Mellon’s wealth management group based in Boston. “High-net-worth borrowers don’t have to borrow. They choose to, so they’re very strategic about what, why, and when they borrow.” Read the court decision
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Reprinted courtesy of Alexis Leondis, Bloomberg
Ms. Leondis may be contacted at aleondis@bloomberg.net

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Barratt Said to Suspend Staff as Contract Probe Continues

January 26, 2017 — Jack Sidders - Bloomberg
Barratt Developments Plc suspended at least three more employees within its London business as part of an ongoing probe into potential misconduct in the awarding of contracts, according to two people familiar with the decision. The people asked not to be named because a police investigation is ongoing. The suspensions follow that of London regional managing director Alastair Baird, who was arrested in October. He was released on bail until April, along with a 47-year-old woman, according to a Metropolitan Police spokesman, who was unable to immediately respond to a request for comment. Read the court decision
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Reprinted courtesy of Jack Sidders, Bloomberg
Mr. Sidders may be followed on Twitter @JackSidders

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HOA Has No Claim to Extend Statute of Limitations in Construction Defect Case

October 28, 2011 — CDJ STAFF

The California Court of Appeals ruled on September 20, 2011 in the case of Arundel Homeowners Association v. Arundel Green Partners, a construction defect case involving a condominium conversion in San Francisco. Eight years after the Notice of Completion was filed, the homeowners association filed a lawsuit alleging a number of construction defects, including “defective cabinets, waterproofing membranes, wall-cladding, plumbing, electrical wiring, roofing (including slope, drainage and flashings), fire-rated ceilings, and chimney flues.” Three years of settlement negotiations followed.

Negotiations ended in the eleventh year with the homeowners association filing a lawsuit. Arundel Green argued that the suit should be thrown out as California’s ten-year statute of limitations had passed. The court granted judgment to Arundel Green.

The homeowners then filed for a new trial and to amend its complaint, arguing that the statute of limitations should not apply due to the doctrine of equitable estoppel as Arundel Green’s actions had lead them to believe the issues could be solved without a lawsuit. “The HOA claimed that it was not until after the statute of limitations ran that the HOA realized Arundel Green would not keep its promises; and after this realization, the HOA promptly brought its lawsuit.” The trial court denied the homeowners association’s motions, which the homeowners association appealed.

In reviewing the case, the Appeals Court compared Arundel to an earlier California Supreme Court case, Lantzy. (The homeowners also cited Lantzy as the basis of their appeal.) In Lantzy, the California Supreme Court set up a four-part test as to whether estoppel could be applied. The court applied these tests and found, as was the case in Lantzy, that there were no grounds for estoppel.

In Arundel, the court noted that “there are simply no allegations that Arundel Green made any affirmative statement or promise that would lull the HOA into a reasonable belief that its claims would be resolved without filing a lawsuit.” The court also cited Lesko v. Superior Court which included a recommendation that the plaintiffs “send a stipulation?Ķextending time.” This did not happen and the court upheld the dismissal.

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Waiving Consequential Damages—What Could Go Wrong?

March 19, 2024 — Curtis W. Martin & Kellie M. Ros - Peckar & Abramson, P.C.
You are inexcusably late with construction of a football stadium, a casino, or similar project that generates large income for the owner. The indirect damages, often referred to as consequential damages, that flow from the delay can be astronomical to the point of breaking your company if it must pay them. As a result, many construction contracts, at every tier, contain a provision that waives consequential damages. By this waiver, a party seeks to limit its risk for these damages. Over the years, courts have interpreted these provisions in a widely variable and inconsistent manner. The courts typically start with the specific language of the waiver to discern the parties’ intent. Thus, the language of the provision itself is critical. But construction professionals should not overlook other provisions in the contract that may have an impact on a court’s analysis of the parties’ intent. As one of my colleagues likes to say, “the large print giveth and the small print taketh away.” Reprinted courtesy of Curtis W. Martin, Peckar & Abramson, P.C. and Kellie M. Ros, Peckar & Abramson, P.C. Mr. Martin may be contacted at cmartin@pecklaw.com Ms. Ros may be contacted at kros@pecklaw.com Read the court decision
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Retroactive Application of a Construction Subcontract Containing a Merger Clause? Florida’s Fifth District Court of Appeal Answers in the Affirmative

September 07, 2017 — Sanjo S. Shatley - Florida Construction Law News
Florida’s Fifth District Court of Appeal recently addressed the issue of retroactive application of a construction subcontract on the basis of a merger clause in Don Facciobene, Inc. v. Hough Roofing, Inc.[1] In the case, in late 2010, Don Facciobene, Inc. (“DFI”), a licensed general contractor, contracted with Digiacinto Holdings, LLC, an owner of a home built in 1905 in Melbourne, Florida, known as the Nannie Lee House or the Strawberry Mansion, to perform various renovations in preparation for a restaurant to be opened on the premises. One of the renovations included a new roof. DFI subcontracted the roofing work to Hough Roofing, Inc. (“HRI”), a licensed roofing subcontractor. In mid-March 2011, HRI submitted an estimate and proposed statement of work to DFI. DFI’s project manager signed HRI’s proposal on April 5, 2011, as well as an additional expanded proposal six days later. According to the proposals, payment was due on completion. HRI began work on the roof on April 15, 2011, without a signed subcontract. However, DFI and HRI ultimately executed a subcontract on June 8, 2011, even though HRI had mostly finished its work by the end of May. Read the court decision
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Reprinted courtesy of Sanjo S. Shatley, Cole, Scott & Kissane, P.A.
Mr. Shatley may be contacted at sanjo.shatley@csklegal.com

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Contractors May be Entitled to Both Prompt Payment Act Relief and Prejudgment Interest for a Cumulative 24%!

August 22, 2022 — Margarita Kutsin - Ahlers Cressman & Sleight
The Washington Prompt Payment Act, in Ch. 39.76 RCW and in RCW 39.04.250, ensures that contractors and subcontractors are promptly paid for their performance on public works contracts. Where a government entity or a prime contractor wrongfully withholds undisputed amounts due, that government entity or prime contractor must pay interest at a rate of 12% per annum. Separately, prejudgment interest is awarded “based on the principle that a defendant ‘who retains money which he ought to pay to another should be charged interest upon it.’” Hansen v. Rothaus, 107 Wn.2d 468, 472, 730 P.2d 662 (1986) (quoting Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 34, 442 P.2d 621 (1968)). The purpose is to “compensate the plaintiff for the use value of the money representing liquidated or determinable damages.” Id. Read the court decision
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Reprinted courtesy of Margarita Kutsin, Ahlers Cressman & Sleight
Ms. Kutsin may be contacted at margarita.kutsin@acslawyers.com

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