The highly irregular but always interesting newsletter of the SCCA

Volume 16 No 16                                                                           June 23, 2006

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·        Lose, lose for California construction industry—CARB

·        ARTBA victorious in Supreme Court Wetlands Case

·        CIFAC scores $14 million win on force account violation

Lose, lose for California Contractors

The California Air Resources Board yesterday approved a punititive new set of regulations for owners of portable diesel engines--the units that power things like generators, trash pumps, traffic control signs and the like--that is a definite lose, lose proposition for the California construction industry.

The regulations will punish those contractors who failed to get their equipment registered by the December 31, 2005 deadline, people CARB called “scofflaws” during yesterday’s hearing. Among the punishments will be fines and penalties in the thousands of dollars--and worst of all, the ARB rules say that the contractors lose the ability to use the non-registered equipment forever.

The regulation will punish those contractors who in good faith did register these units with new higher taxes disguised as fees along with oppressive reporting requirements. These unusually difficult requirements will add nearly $1000 per year to the cost of operating this equipment when you add all the fees, reports, special placards and other requirements together.

These new regulations will take effect later this summer. SCCA and representatives of CIAQC testified at the hearing, asking CARB to re-open the registration process for older equipment—a request that was unanimously rejected.

Industry observers say this foreshadows bad news for the off-road diesel regulations that are working their way through the CARB labyrinth this year.

ARTBA Victorious in Supreme Court Wetlands Case

The Supreme Court this week said the government does not have the right to control every ditch and wet spot in the country, in a case that involved our friends at the Pacific Legal Foundation and ARTBA.

The high court refused to expand the regulatory authority of the United States Army Corps of Engineers over man-made ditches and remote wetland areas.  In a split decision in the cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the Court held the Corps may have over-extended its authority under the Clean Water Act by exerting jurisdiction over man made ditches and wetland areas with remote connections to navigable waters.

“Today’s decision is a victory for balanced environmental protection—common sense and the rule of law have prevailed,” said Reed Hopper, a principal attorney for Pacific Legal Foundation, which represents Rapanos. “The Court rejected the idea that there are no limits on the federal government’s regulatory authority under the Clean Water Act. It is not the role of the federal government to micromanage every pond, puddle, and ditch in our country.”

ARTBA, in partnership with the National Stone, Sand and Gravel Association and the Nationwide Public Projects Coalition, filed a “friend of the Court” brief. 

ARTBA’s brief noted the transportation construction industry has been grappling with wetlands issues for years and often faces confusing and conflicting interpretations on the scope of federal jurisdiction. 

This week’s decision sends the encouraging message that the Court does not view the Corps’ authority to regulate wetlands as without limit.  In fact, the Court sent a strong signal that it would not be receptive to future Corps attempts to broaden the federal jurisdiction over wetlands.  

However, because of the split nature of the decision, these issues will still be reviewed by lower courts on a case-by-case basis.  To read the complete Supreme Court decision, check out http://www.supremecourtus.gov/opinions/05pdf/04-1034.pdf.

This effort by ARTBA demonstrates just one of the many reasons SCCA has elected to become the state chapter of this powerful organization. If you want to support ARTBA, sign up at www.sccaweb.org/artba_application.htm

CIFAC scores $14 million win on force account violation

The Construction Industry Force Account Council (CIFAC) has opened shop in southern California and is already reporting its first win—a $14 million decision by the city of Fontana to place several projects out for bid that it had planned on building with its own forces.

CIFAC Investigator Sally Riley is working on a total of $65 million in potential violations and is looking for more.

She is developing close ties with labor contract compliance offices, union contractors and SCCA’s Ed Kalish who headed the Force Account Research Board which has been merged into CIFAC’s operation by the Southern California Industry Funds who provided the seed money to bring CIFAC to our region.

If you know of any force account violations, or just want to support CIFAC’s efforts to bring this pernicious problem under control, call 800-755-3354 or contact Sally directly at 530-227-5217 or by email at cifac@snowcrest.net . For more information on CIFAC’s great track record and current activities check out their web site www.cifac.org .

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If you have an item for SCCAtterings, contact Bill Davis by email at williamedavis@cox.net