Thursday, December 27, 2018

5th Circuit: General contractor can be cited for subcontractor violations. A U.S. Appeals Court judge for the 5th Circuit in New Orleans has ruled that OSHA can cite general contractors for violations--even if that contractor's own direct employees are not affected--for subcontractor safety violations. The ruling came after Labor Secretary Alexander Acosta requested that the 5th Circuit review an OSHA administrative court decision that said a general contractor could only be cited for safety threats to its own employees. While this decision is not binding on California Courts, contractors should pay close attention to this trend--and it is reasonable to expect legislation to be introduced in California this year to create a statutory obligation for GCs to insure worker safety. More
 
When CEQA Gets Ugly: 3rd District Holds That Lay Public Opinion Supports Fair Argument That Project May Have Significant Aesthetic Effect Requiring EIR. In a published opinion filed December 17, 2018, the Third District Court of Appeal affirmed a judgment granting a writ setting aside El Dorado County's approval of, and related Mitigated Negative Declaration (MND) for, construction of a Dollar General Store in the "quaint" downtown area of unincorporated Georgetown, a Gold Rush-era "hamlet" designated as a State Historical Landmark. The Court held that lay public commentary on nontechnical issues concerning the project's size and general appearance constituted substantial evidence supporting a fair argument that the project may have significant aesthetic impacts, and thus required an EIR, notwithstanding County's findings that the project complied with its Historic Design Guide. The Court also held County's failure to make explicit findings in the record on alleged credibility and foundation issues precluded its "manufacturing after-the-fact findings" to justify its dismissal of the public comments on the ground that they did not constitute "substantial evidence." More