ISA News

Lafarge North America Inc., one of the largest suppliers of construction materials in the U.S. and Canada, and four of its U.S. subsidiaries have agreed to resolve alleged Clean Water Act (CWA) violations. The violations include unpermitted discharges of stormwater at 21 stone, gravel, sand, asphalt and ready-mix concrete facilities in Alabama, Colorado, Georgia, Maryland, and New York. Stormwater flowing over concrete manufacturing facilities can carry debris, sediment and pollutants, including pesticides, petroleum products, chemicals and solvents, which can have a significant impact on water quality. Under the settlement agreement, Lafarge will implement a nationwide evaluation and compliance program at 189 of its facilities in the United States to ensure they meet CWA requirements. Lafarge will also pay a penalty of $740,000 and implement two supplemental environmental projects, in which the company will complete conservation easements to protect approximately 166 acres in Maryland and Colorado. The value of the land has been appraised at approximately $2.95 million. Lafarge will also implement one state environmentally beneficial project valued at $10,000 to support environmental training for state inspectors. The CWA requires that industrial facilities, such as ready-mix concrete plants, sand and gravel facilities and asphalt batching plants, have controls in place to prevent pollution from being discharged with stormwater into nearby waterways. Each site must have a stormwater pollution prevention plan that sets guidelines and best management practices that the company will follow to prevent runoff from being contaminated by pollutants.

In early 2011, the ISA Board established the ISA GC Council in order to build stronger relationships in the construction industry with industry partners from a subcontractor’s point of view. The first meeting of the council was held in late September at the Skyline Club in downtown Indianapolis. During the meeting, Darrell Gossett, President of ERMCO, set the “ground rules” for the council and provided details on the council’s goals. Following Gossett’s remarks, Carl Pebworth, Baker & Daniels partner, facilitated a working session wherein each council member drafted four ideal traits of a subcontractor and four opportunities within a GC/CM and subcontractor relationship. Through the use of those ideas submitted, the council will return in November to discuss the outcome of what was put down by each person and begin discussing issue by issue. The end goal is to develop best practices in terms of an ideal subcontractor as well as an ideal relationship between a GC or CM and a subcontractor. These best practices will be utilized to develop programs through the ISA which will include educational sessions. Harry Milli, Certified Floorcoverings, remarked after the meeting, “This is a very powerful group of people that do a large amount of construction within Indiana. The key will be to keep this group moving forward in a productive manner. If we can do that, I believe we will see best practices come from this group that can affect the way the construction community does business in Indiana.” The council also has set a goal to interact with other sectors of the industry including design professionals, owners, material suppliers and industry service providers. The group believes that by developing enhanced relationships with these different sectors and developing best practices with each sector, it will foster a better working environment in the central Indiana construction industry. The council is made up of a diverse group of 12 general contractors or construction managers representing union and merit shop interests and 8 subcontractors also representing union and merit shop interests. “We really focused on a balanced approach between size, type of work, and affiliations,” said Scott Grimes, ISA Executive Director. “We wanted to ensure that we established a realistic cross section of the industry as it relates to GCs, CMs, and subcontractors.”

New Federal Disability Design Standards - Will Your Projects be "Up to Snuff?"

Article by Jeffrey Beck, Baker & Daniels LLP
317.237.8329 or jeffrey.beck@bakerd.com

 

During the summer months, many businesses turn their sights to facility improvements.  Whether a thorough renovation, remodeling, or totally new construction, subcontractors should consider the implications of the building design standards under the Americans with Disabilities Act ("ADA") on any significant projects they undertake.  Recently, the U.S. Department of Justice adopted revised Standards for Accessible Design (2010 Standards) as well as new regulations implementing the ADA which include modifications to the ADA's non-discrimination requirements.

Is Your Project Covered?

 

It is important for the subcontractor to determine whether a project must comply with the ADA's design standards.  The ADA's design standards have broad coverage.  They apply to a) businesses that provide goods or services to the public (public accommodation) and b) commercial facilities.  Twelve categories of businesses qualify as public accommodations including hotels, restaurants and bars, movie theaters, retail establishments, service establishments, parks, and other public gathering places.  Commercial facilities are those that affect commerce, such as office buildings, factories and warehouses.  Places of public accommodation and commercial facilities must meet strict standards for new construction or alteration to existing facilities.  Existing facilities also must remove all architectural barriers if that is easily accomplished without much difficulty or expense. 

What's Your Deadline and Risk of Non-Compliance?

 

The new 2010 Standards replace the Standards implemented with the original ADA almost 20 years ago.  The deadline for complying with the new Standards is March 15, 2012.  Until then, businesses subject to the Standards can choose whether to comply with either the 1991 Standards or the 2010 Standards.  The new regulations also create a safe harbor for existing facilities as facilities that were built or altered to comply with the 1991 Standards need not be updated to comply with the 2010 Standards.

Non-compliance with the ADA construction standards can lead to a lawsuit and liability.  An individual with a disability can sue a public accommodation claiming denial of access to the business' goods or services because of an architectural barrier.  Besides defense costs, if a business is found to have architectural barriers non-compliant with the standards it can be liable for the attorney's fees of the individual who sued the business.  The business also will have to remove the architectural barrier.  A subcontractor may be liable to the contractor or business owner if the project fails to comply with the ADA's design standards.  Clearly, the cost of removing the barrier in the first place can be a more productive use of resources when viewed in this light. 

Some states have laws that allow individuals with disabilities to recover damages for denial of access to a business' goods or services due to an architectural barrier.  Indiana, however, does not have such a statute.  In those states that do, damages provide a strong incentive to sue and have led to serial plaintiffs.  Thus, businesses with operations outside of Indiana need to comply with all state laws as well to avoid potential damages.

Examples of Common Pitfalls

So what are some potential pitfalls subcontractors should look out for?  First, avoid creating new barriers that may occur as the project develops or changes.  Something as simple as rearranging furniture so that it intrudes on an accessible route can create a barrier and an ADA violation.  That nice new display or product may also create a barrier.  We have all seen the beautiful pedestal table adorned with fresh cut flowers in the lobby of a retail or office building.  But, if the table intrudes into an accessible route it is a potential barrier to a person with a visual impairment who may not be able to detect it with a cane.  This barrier can be fixed by removing the table or placing objects on the floor around the table.  There are many ways a business can create barriers if it is not careful.  It is a good idea to periodically conduct an inspection or walk through the facility to spot and remove any barriers.

Another potential trap is the "alteration."  A facility that was constructed or modified to meet the 1991 Standards must be updated to meet the 2010 Standards if it undergoes an "alteration."  Alterations include remodeling, renovation, rearrangements in structural parts, and changes to, or rearrangement of, walls and full-height partitions.  However, businesses need not update the entire facility, only the area to be "altered."  One change in the 2010 standards is that the required mounting height for light switches has been lowered from 54" to 48".  Now a routine restroom remodeling can now lead to legal liability if the switches are not lowered to 48".

    Another potential pitfall relates to parking lots.  Again, the facility does not have to comply with the 2010 Standards if it has already met the 1991 Standards.  However, it will have to comply with the 2010 Standards if there is an "alteration" to the existing parking lot.  Restriping a parking lot is considered an alteration.  Unlike the 1991 Standards, the 2010 Standards require that an accessible route adjoin each accessible parking space.  The 2010 standards also require one in every six accessible parking spaces to be van accessible, while the 1991 Standards require one in every eight.  Because restriping a parking lot is considered an "alteration," the 2010 Standards will apply.

            Businesses have always been required to remove barriers that can be accomplished without difficulty or expense.  Whether a facility is required to remove barriers depends on factors such as cost, financial resource, and the type of operation.  Examples of barriers that can be removed easily are raising or lowering grab bars, repairing uneven pavement, installing accessible signs and widening entrance doors.  Thus, it is important for the subcontractor to be able to identify any unanticipated barriers as the project develops.

            A key thing to remember about the ADA's accessibility requirements is that compliance can impact relationships with customers.  Taking extra measures to ensure the accessibility of your projects will not only minimize or eliminate liability but just as importantly, lead to a loyal and expanding customer base.

For the past four years, I have been affiliated with the Indiana Subcontractors Association (ISA), and I can truly say that this relationship has proved very helpful in my endeavors as a student and my preparation for a professional career within the industry.

I am currently a senior at Ball State University, where I am majoring in Construction Management. As I near closer to May's graduation and reflect on my years here and even before I arrived to Ball State, I understand and appreciate the fact that ISA has been a tremendous help in my success to date. Click here to read more.