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.

First, we are pleased to introduce you to three new attorneys – Jeremy E. Carroll, Michael W.S. Lockaby, and Julian F. Harf – who have joined our Roanoke team.

Jeremy Carroll is a Member, and his primary areas of practice are local government law, civil litigation, employment law, land use and zoning, school law, government contracts, and public finance. Jeremy also serves as the Lexington City Attorney, Vinton Town Attorney, and Halifax County Attorney.

Mike Lockaby also joins Spilman as a Member, and his primary areas of practice include local government and public entity representation, infrastructure, land use, affordable housing, public finance/bonds, public-private partnerships, and economic development. Additionally, Mike serves as the Botetourt County Attorney and Town of Bedford Attorney.

Julian Harf joins the firm as a Senior Attorney and litigator with an emphasis on the defense of local government entities, public officials, and commercial entities. Julian is a member of the Board of Trustees for the Roanoke County Public Schools Education Foundation and also serves as County Attorney for Bath County.

Secondly, 14 of the firm’s West Virginia-based lawyers, three of our Virginia-based attorneys and two of our Pennsylvania attorneys were recognized by Super Lawyers for 2023! Many of these attorneys practice construction law and adjacent practice areas. Congratulations to them for this well deserved honor!

Finally, Clifford F. Kinney, Jr. recently joined the International Association of Defense Counsel (IADC), one of the most respected legal organizations in the world. The IADC is an invitation-only association for lawyers and insurance executives who represent corporate and insurance interests around the world.

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

“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 

“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

“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

“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

“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 

“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

“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

Stephanie U. Eaton

Member

Vice Chair of Southern Offices, Litigation Department

Co-Chair, Construction Group

Winston-Salem, NC

office 336.631.1062

seaton@spilmanlaw.com

Stephanie is a Member in our Winston-Salem office. Her primary areas of practice include litigation involving construction-related claims, energy and utility matters, and product liability and commercial disputes. She has extensive experience handling class actions, mass tort litigation, multi-district litigation and complex, document-intensive matters.

Stephanie’s construction contract evaluation, litigation and dispute resolution include

evaluating and negotiating commercial construction contracts for owners, contractors and subcontractors, including WBE/MBE’s, tank fabricators and erectors, grading and hauling contractors, and specialty subcontractors, in a variety of public and private building and highway construction; using alternative dispute resolution to resolve litigation disputes as early as practicable, filing and/or defending lien claims, and handling construction litigation in court or arbitration to achieve optimal results for clients; and advising clients, such as lumber supplier and national lien company, on commercial projects with construction management and best practices before, during and following construction.

She is a Fellow with the Construction Law Society of America. Stephanie has bee nominated by her peers for inclusion in The Best Lawyers in America for Product Liability Litigation – Defendants, including Best Lawyers® 2019 "Lawyer of the Year" in the area of Product Liability Litigation - Defendants in Greensboro, N.C., and in the area of Litigation – Construction. She is AV® Preeminent™ Peer-Review Rated by Martindale-Hubbell. In 2011, she was named Women Extraordinaire of the Triad. For 2023, she has been recognized as a JD Supra Readers' Choice Top Author for Construction Law.

Stephanie devotes her time and experience to a variety of member organizations, including the Federation of Defense and Corporate Counsel, Defense Research Institute, North Carolina Bar Association, Trial Law Institute, and Diversity Law Institute.



She received her B.A. from Emory University and her J.D. from University of Florida School of Law. Stephanie is admitted to North Carolina, Florida, South Carolina and Georgia State Bars; United States Court of Appeals for the Fourth and Eleventh Circuits; United States Court of Federal Claims; United States District Courts for the Eastern, Middle and Western Districts of North Carolina; United States District Court for the District of South Carolina; United States District Court for the Northern, Middle and Southern Districts of Florida; and United States District Court for the Northern District of Georgia.