A recent federal court decision underscores how a federal agency’s failure to comply with Section 106 of the National Historic Preservation Act can impact construction projects.  

Section 106 is a procedural statute that requires each federal agency to take into account the effect of its “undertakings” on properties listed on or eligible for listing on the National Register of Historic Places. “Undertakings” include federally funded or federally permitted private projects. 

In this case, the district court granted a preliminary injunction that suspended construction on a 700+ megawatt solar project in California. The court found that the BLM, by not adequately consulting with a tribe on the project, failed to comply with Section 106. 

The case is a good reminder that owners and developers should monitor the permitting or funding agency’s approach to Section 106, because the agency’s lack of compliance can derail your project. 

Although the final regulations were effective February 1st, EPA expects states like Oregon that have NPDES permitting authority to incorporate the new guidelines and standards into NPDES construction general permits as they are reissued.  For construction activities on Indian reservations and other jurisdictions where EPA retains NPDES permitting authority, EPA will incorporate the new guidelines and standards into its NPDES construction general permit when it’s reissued in 2011 (EPA modified its 2008 NPDES construction general permit to extend the expiration date to June 30, 2011).  Individual NPDES permits issued on or after February 1st are immediately subject to the new rule.

The new rule imposes non-numeric standards that apply to all construction sites disturbing one acre or more.  The new rule also includes numeric limits for turbidity that will apply to construction disturbing 20 acres or more starting August 2, 2011 and construction disturbing 10 acres or more no later than February 2, 2014.  (Note that the December 1, 2009 Federal Register notice incorrectly states that the August 2, 2011 compliance date is August 2, 2010.) 

Under this order, Oregon OSHA adopted a federal OSHA rule clarifying that employers are liable for violations on a per-employee basis. Until now, there was some uncertainty whether OSHA could impose penalties on an employer for each employee who failed to comply with OSHA’s PPE and training standards. Not now. This raises the stakes for any Oregon contractor that fails to make sure its employees follow these standards. Contractors should alert their safety managers that each PPE or training violation (for example, an employee not showing up with the right footwear) may result in a penalty.

Because the Oregon OSHA order is based on a federal rule, contractors working outside Oregon should find out whether the new federal OSHA rule applies in their states too.
 

These assumptions are especially dangerous if there is a lack of professional liability insurance for design-build work. In design-build projects, the general contractor (GC) or one of its subs, rather than the owner, hires the architect and engineer to design the project. But even if your project isn’t 100% design-build, there’s a good chance that some of the design work – for example, fire sprinkler design – won’t be performed by the project architect hired by the owner. Either way, you can bet that the liability policies of the GC or its subs don’t cover the errors of architects or engineers hired by the GC or sub to design the work. So, without coverage through a designer’s insurance, and without coverage through the GC’s or subs’ liability insurance, there’s a hole in insurance coverage. And even if a design professional hired by the GC or a sub carries insurance, it may be inadequate to cover the potential loss.

One option is to acquire Contractor’s Protective Professional Indemnity and Liability Insurance, or CPPI. CPPI is insurance that a contractor can buy that indemnifies the contractor for negligent errors and omissions of a design professional hired by the contractor. If written properly, CPPI gives the contractor coverage for design errors if the design professional’s own insurance comes up short.

Like all insurance, CPPI isn’t perfect. CPPI will likely have exclusions that will limit coverage (for example, for mold), and, to shake out a policy’s weaknesses, the fine print should be carefully reviewed. And because CPPI doesn’t kick in until it’s determined whether the design professional’s own insurance applies, it may be months or even years until the CPPI policy responds to a claim. But if design work isn’t otherwise adequately insured, CPPI could help a contractor protect itself and the project owner.