Dust Fines in the Midwest

Well...it is happening elsewhere....read this......

SAN FRANCISCO – The U.S. Environmental Protection Agency today fined with Richmond American Homes of Arizona, Inc. $155,000 for alleged dust violations that occurred at five residential construction sites in Maricopa County.

The violations were discovered during routine inspections from 2003 to 2005 conducted by the Maricopa County Air Quality Department.

"Maricopa County's particulate air pollution continues to be a serious problem, and companies not complying with fugitive dust control laws are one of the causes," said Deborah Jordan, the EPA’s Air Division director for the Pacific Southwest region. "The EPA works closely with the Maricopa County Air Quality Department to enforce these laws and send the message that noncompliance will not be tolerated."

From November 2003 to January 2005 Richmond allegedly failed to comply with Maricopa County rules during earth moving and dust generating operations at construction projects. Maricopa County inspectors discovered the following violations:

• failure to use a suitable control device to remove dirt from

vehicle tires exiting construction sites,

• failure to immediately clean up dirt tracked out 50 feet beyond

the site,

• failure to spray disturbed surface areas with water while

conducting earth moving operations on an acre or more, and

• failure to implement approved control measures while conducting a

dust generating activity.

"The resolution in this case is a step in the right direction in improving air quality in Maricopa County and our quality of life," said Daniel G. Knauss, U.S. Attorney for the District of Arizona.

As part of the settlement, all current and new company employees involved in dust-generating activities must complete dust-control training, the company must certify every six months that training is up-to-date, and employ a qualified dust control coordinator at all Maricopa County sites equaling or exceeding 50 acres in disturbed surface area.

One of the primary causes of particulate pollution in the Phoenix area is wind blown dust from construction and home development sites, road building activities, unpaved parking lots and roads, disturbed vacant lands, and paved road dust.

Particulate matter, including dust, affects the respiratory system. Particle pollution is a complex mixture of extremely small particles and liquid droplets in the air. When breathed in, these particles can reach the deepest regions of the lungs, and is linked to a variety of significant health problems -- ranging from aggravated asthma to premature death in people with heart and lung disease.

The elderly, children and people with chronic lung disease, influenza, or asthma are especially sensitive to high levels of particulate matter. Particle pollution also is the main cause of visibility impairment in the nation’s cities and national parks.

Maricopa County exceeds the national health standard for particulate matter, or dust. The EPA has classified the county as a serious non-attainment area for particulate matter. The Clean Air Act requires the state to submit a plan containing measures that will reduce airborne particulate matter five percent a year until the area meets the federal air quality standard.

Hmmmmm.........with all the wind out here on the Great Plains, could we be seeing this in our area of the country?

Lone Bidder on arena job in Wichita Kansas.....does this make sense?

An interesting read out of Wichita:

Dondlinger could be lone bidder on arena job

Again, county officials say their hands were tied by law, relegating them to finding a traditional general contractor for the job.

"We just believe we were prevented from doing that," says Sedgwick County Commissioner Tom Winters.

The Process

Sedgwick County officials weren't willing to concede they would receive just a single bid on the arena job, which is considered the largest in Sedgwick County history. But they say they've heard talk about it.

"I've been doing this job long enough that I take a wait-and-see attitude," says Stephanie Knebel, the county's project manager.

There are no provisions that automatically allow the county to re-bid the arena should it receive only one proposal, Knebel says. But the county does have options.

"It's all dictated on the dollar amount of the bid," she says.

If the bid comes in beneath the county's budget for the project, officials would spend next week evaluating it in order to place a recommendation before the county's bid board on Thursday. The matter then would go before the Sedgwick County Commission Sept. 26.

If the bid is higher than the $139.1 million project budget, the county could reject it outright or work with the contractor to find ways to bring down the cost. Knebel says the county also could reject any bid if it found the bidder unsuitable for the job.

The latter isn't likely to happen. Hunt Construction is building a new stadium for the Indianapolis Colts, among other sports-related jobs. Dondlinger four years ago renovated 10,400-seat Koch Arena at Wichita State University.

Knebel says "it would be very difficult" for the county to re-bid the project, especially after Dondlinger's bid is unsealed Friday.

Many construction companies, he says, are facing workforce shortages.

Still, "I would think a project that size would be attractive to some of the larger companies," Peterson says. "We don't see those too often outside of Kansas City."

Rich Kerschen, president and chairman of The Law Co., says his company will focus on jobs with long-standing customers. Steve Houser, chief estimator for Columbus, Kan.-based Crossland Construction, says the firm "just didn't have the resources to send over there."

Not only does it take significant manpower to complete a two-year project like the arena, but it also takes resources simply to bid the work. Dondlinger and Hunt have a team of estimators putting together their proposal.

"That's a huge job," says McSparran, of Turner.

Criticism

Turner had been a potential partner with Key Construction on the job.

But both bowed out with Key criticizing the county's hard bid process, saying it offered no advantage to local contractors.

County officials countered by saying they were prevented by state law from offering those kinds of advantages.

Meanwhile, other firms walked away from the arena job much earlier in the process.

Kansas City, Mo.-based JE Dunn Construction Co. has said the firm would have been more interested in the project had there been a construction manager to work with architects earlier in the project.

Again, county officials say their hands were tied by law, relegating them to finding a traditional general contractor for the job.

"We just believe we were prevented from doing that," says Sedgwick County Commissioner Tom Winters.

The Process

Sedgwick County officials weren't willing to concede they would receive just a single bid on the arena job, which is considered the largest in Sedgwick County history. But they say they've heard talk about it.

"I've been doing this job long enough that I take a wait-and-see attitude," says Stephanie Knebel, the county's project manager.

There are no provisions that automatically allow the county to re-bid the arena should it receive only one proposal, Knebel says. But the county does have options.

"It's all dictated on the dollar amount of the bid," she says.

If the bid comes in beneath the county's budget for the project, officials would spend next week evaluating it in order to place a recommendation before the county's bid board on Thursday. The matter then would go before the Sedgwick County Commission Sept. 26.

If the bid is higher than the $139.1 million project budget, the county could reject it outright or work with the contractor to find ways to bring down the cost. Knebel says the county also could reject any bid if it found the bidder unsuitable for the job.

The latter isn't likely to happen. Hunt Construction is building a new stadium for the Indianapolis Colts, among other sports-related jobs. Dondlinger four years ago renovated 10,400-seat Koch Arena at Wichita State University.

Knebel says "it would be very difficult" for the county to re-bid the project, especially after Dondlinger's bid is unsealed Friday.

Still, it would be nice to receive more than one bid, Knebel says.

"You and I both know contractors would sharpen their pencils just a little bit more if there was known competition," she says.

Dondlinger & Sons Construction Co.

Address: 2556 S. Sheridan, Wichita, Kan., 67217.
Phone: (316) 945-0555.
President: Tom Dondlinger.

Hunt Construction Group Inc.

Address: 6720 N. Scottsdale Road, Scottsdale, Ariz., 85253.
Phone: (480) 368-4700.
Chairman/CEO: Robert G. Hunt.

cmoon@bizjournals.com | 266-6176

What To Do If You Get A No-Match Letter From Social Security?

My good friend and collaborator at Arent Fox, Jaime Frankel shares this information with us..........................Folks: It is time for a comprehensive audit of your employment and immigration practices!

Do You Know What to Do If You Get a No-Match Letter From Social Security?

Are you aware that the Department of Homeland Security/Immigration and Customs Enforcement has increased its efforts in prosecuting those who employ illegal aliens?

Immigration and Customs Enforcement (ICE) is the largest investigative branch of the Department of Homeland Security (DHS). Formed in the wake of September 11, 2001, one of its missions is to prosecute illegal aliens and those who employ them. In furtherance of this mission, during FY 2006 ICE significantly stepped up its worksite enforcement efforts, using criminal prosecutions and asset forfeiture as tools against employers of illegal aliens even more than the former U.S. Immigration and Naturalization Service (INS), which tended to rely on administrative fines to combat such activity. ICE has stated that it believes that criminally charging and seizing the assets of employers will create the kind of deterrence that was previously absent in worksite enforcement efforts. In FY 2006, for example, statistics show that ICE made seven times more arrests than made by INS in its last full year of operation:

	Individuals arrested on criminal charges *	Individuals arrested on administrative charges *
FY 2002 (INS)	25	485
FY 2006 (ICE)	716	3,667
FY 2007 (ICE) **	742	3,651

*Includes both employers and employees
**Through July 31, 2007

Employers who are targeted and arrested in these worksite enforcements face jail time and risk significant asset forfeiture for knowingly employing illegal aliens. In the area of asset forfeiture alone, between October 2006 and May 2007, criminal fines and asset forfeitures have totaled $29.8 million. Along with the increase in criminal enforcement efforts, DHS is also stepping up its civil enforcement efforts.

What is a Social Security No-Match letter?

Employers are required to report employee wages annually on W-2 forms. The Social Security Administration (SSA) processes these forms as an agent of the Internal Revenue Service, and uses such earnings information to determine the amount of Social Security benefits to which an employee is entitled. If an employee’s name and social security number on a W-2 do not match those in the SSA’s records, the SSA sends a so-called No-Match letter to the employer (this letter can also be called an “Employer Correction Request”, among other things). A mismatch may occur for any number of innocuous reasons (e.g., clerical or typographical errors); however, it is possible that the social security number does not match because an alien who is unauthorized to work in the United States has provided the employer with a fraudulent social security card or number.

Have you heard about DHS’s new regulation affecting SSA’s No-Match letter and whether an employer knowingly employs an illegal alien?

Under the new DHS regulation (8 C.F.R. Part 274a), an employer, in response to a No-Match letter, will face potential liability for having “constructive knowledge” (i.e., knowledge that may fairly be inferred) of the existence of an unauthorized employee, unless the employer takes “reasonable steps” to resolve a mismatch. In order to provide employers with “safe-harbor” from DHS using a No-Match letter as evidence that an employer has “constructive knowledge” of employing an illegal worker, DHS has outlined specific procedures it considers reasonable. For those employers receiving SSA No-Match letters, a DHS/ICE letter will arrive concurrently discussing these procedures. These procedures are also set forth in 8 C.F.R. Part 274a.

When is the effective date of this new regulation?

The regulation was supposed to go into effect on September 14, 2007. Recently, however, a federal judge has issued a Temporary Restraining Order that precludes DHS from enforcing the regulation. The Order is in effect until October 1st; at a hearing set for that date the Court will determine whether the Order should be extended or whether the regulation should be permitted to go into effect. Arent Fox is monitoring the status of this litigation and will provide additional information on the effective date of the regulation as that information becomes available.

---

Arent Fox LLP has the experience and personnel to help you understand the new regulation and the new “safe harbor” procedures and avoid becoming the target of DHS/ICE worksite enforcement efforts and prosecutions.

Arent Fox will schedule a comprehensive seminar on the regulation as soon as the court clarifies whether and when it will go into effect. In the meantime, Arent Fox strongly advises that employers familiarize themselves with the new regulation and its “safe harbor provisions.”

If you have any questions, please contact:

Baruch Weiss
Partner
Arent Fox LLP
202.775.5798
weiss.baruch@arentfox.com

Prior to joining Arent Fox LLP, Mr. Weiss served as served as the acting deputy general counsel and associate general counsel at the U.S. Department of Homeland Security. In his capacity as associate general counsel, he supervised all the Department’s immigration lawyers. Mr. Weiss also served 18 years as an Assistant United States Attorney for Southern District of New York.

Recession For The Construction Industry?

If you read today's Wall Street Journal and believe the content, then our economy will be slipping into a bankruptcy in the next 12 months. See "Forecasters Increase Odds Of Recession Over Next Year" offered by Sudeep Reddy. Apparently three-fourths of the fifty-two economist s polled took this position.

By all accounts, the economy is "evolving"...but in what direction? Needless to say it is time to consider whether your operations are up to snuff to deal with the downturn or upturn in the economy!

$334,365,000 "Whistleblower Act Verdict

Every contractor should know that violations of federal or state law can create a basis by which an employee can turn in an employer and obtain a substantial monetary reward. 

This fact is highlighted by the recent imposition of civil penalties of more than $190 million against Amerigroup Illinois and Amerigroup Corporation arising out of a fraud trial held in the Federal District Court in Illinois late last year.

The claims were raised under the False Claims Act and the Illinois Whistleblower Reward and Protection Act. These type of laws have been relied upon for many, many years....and is susceptible to being applied to jobs where a governmental entity is involved.....please put into place the appropriate safeguards to deal with these issues with your company.

Mis-matched Social Security Numbers and what to do about them!

Every employer should be aware Congress passed an act requiring ALL employers to confirm their employees have the correct Social Security numbers. Failing this, substantial fines and penalties would be imposed upon the non-complying parties.

Well the 9th Circuit has entered a temporary restraining order delaying the impact of this order. At best this is most likely a stop gap measure...all employers should seek counsel in order to determine how to deal with this important issue!

Given the fact that there is a lack of applicants for the numerous unfilled jobs in the construction industry this directive works an undue hardship upon the American employer. The United States must develop a plan that accepts into our country the immigrants needed to meet the demands of the various economic sectors....or risk losing competitive advantage we have over the rest of the world!

Colorado laws on indemnification in construction: the continuing saga of the erosion of broad form proovision

Add Colorado to the growing list of states who have deemed provisions where one party indemnifies the other party for the first party's negligence! Good move!