BUILDING in Maryland and Washington, DC

EXCLUSIVE MAGAZINE OF THE MARYLAND-NATIONAL CAPITAL BUILDING INDUSTRY ASSOCIATION

Steve Nardella Takes the Helm for 2012 Also in this Issue: MNCBIA Leadership Awards

JAN/FEB 2012

Maryland-National Capital Building Industry Association 1738 Elton Road, Suite 200 Silver Spring, MD 20903 Phone: (301) 445-5400, Fax: (301) 445-5499 E-mail: communications@mncbia.org Website: www.mncbia.org 2012 Executive Committee Steve Nardella President

Frank Bossong, IV Associate Vice President

Rick Bailey Vice President/Calvert Co.

Clark Wagner Treasurer

Doug Meeker Vice President/Charles Co.

Dave Lunden Vice President, State Legislative/Secretary

Robert J. Spalding Vice President/Montgomery Co.

BUILDING

IN MARYLAND AND WASHINGTON, DC Representing Calvert, Charles, Montgomery, Prince George’s and St. Mary’s counties in Maryland and Washington, DC

FEATURES

Robert R. Harris Life Director

Hillary Colt Vice President/ Prince George’s Co.

Martin J. Mitchell Immediate Past President

Mike Mummuagh Vice President/St. Mary’s Co.

Stephen P. Elmendorf Legal Counsel

Brian “A.J.” Jackson Vice President/Washington DC

Diane K. Swenson Executive Vice President

2012 Board of Directors

Howard Katz David Little Mark Macfarland Tom Marshall Jim Plazak Steve Robins Gary Rubino Michael Schueler Charlene Thayer Peggy White Mel Willis Carter Willson

Lynn Elahi Brian Afnan Hugh Carroll Jeff Caruso Chuck Covell Mike Conley Tony Crane Timothy Dugan Ken Dunn Mary Giles Tom Hudson Tom Hyde Robert A. Jacobs

MNCBIA Staff

Executive Vice President Diane K. Swenson, CAE Vice President, Government Affairs F. Hamer Campbell, Jr.

Jan/Feb 2012

7 MNCBIA Leadership Awards Honoring the Year’s Best

6

8 A Q&A with Steve Nardella

DEPARTMENTS 6 A Message from the President 11 The Legal Pad 12 The Engineer’s Angle 13 MNCBIA Membership News

7

Associate Director/Government Affairs Robert Kaufman Associate Director/Regulatory Affairs Annette Rosenblum

MNCBIA’s Most Wanted List

STARS Club

New Members

14 Events Calendar

Communications Director Kelly H. Grudziecki

14 Index of Advertisers

Director, Membership/Events Jean Mathis Manager, Builders Development Guaranty Group Lisa S. Goheen Director, Home Builders Care Foundation/HomeAid DC Patti Kane

8

Published for: Maryland-National Capital Building Industry Association 1738 Elton Road, Suite 200 Silver Spring, Maryland 20903 301 445-5400 Fax: 301 445-5499 E-mail: building@mncbia.org Website: www.mncbia.org

Published by:

E&M Consulting, Inc. 80 West 78th Street, Suite #230 Chanhassen, MN 55317 800-572-0011 Fax: 952-294-9944 Website: www.emconsultinginc.com Published December 2012 MNC-S0210/9844

BUILDING IN MARYLAND AND WASHINGTON, DC

|

JAN/FEB 2012

5

FROM THE PRESIDENT

A Year of Continued Recovery?

L

Steve Nardella

6

JAN/FEB 2012 |

et’s hope so. But hope is not a plan. I am writing my first president’s message on November 30, 2011. It’s a day when good news is being reported from many sectors of the economy, helping push a 490 point rise in the DJIA, the single best daily performance in three years! A consortium of central banks has pledged support to Europe, and spending on consumer goods, manufacturing, even tourism have all reported increases. While the Case-Shiller Home Price Index reported 3Q declines in most major markets, the DC region again showed modest positive gains as did activity in the resale market as reported by the National Association of Realtors.

Are these market indicators reflecting a short term blip or another step on a path to a more long term sustainable recovery? And, how does it all translate into our local housing market potential? Economic experts have many differing opinions about the outlook for 2012.

For our membership and the association, we have all been playing defense for the past few years, from a housing recession that resulted in permit declines of more than 50 percent and price declines in the region of nearly 30 percent. If reports of improving economic conditions continue, it will translate into raising consumer confidence and demand, which can result in improving markets for us all. Maybe it’s time to go on offense, but do not dust off the old offensive play book. You better have a new one because it’s a new game!

This year should be an interesting and dynamic one for our industry and our association. I would like to thank the entire membership, the 2012 Executive Committee and Board and the association staff for allowing me to serve on your behalf. I look forward to the challenges and opportunities that lie ahead. The vision and mission of the MNCBIA have not changed over the years and will not in 2012. We still will work diligently on industry advocacy, membership services and experience and association viability. Just as your approach to business has evolved, however, so too must the association evolve as we execute our mission. I have outlined a few of our goals below.

We work in and around the national capital region, an area that serves as an education and employment destination for people across the country and around the

BUILDING IN MARYLAND AND WASHINGTON, DC

world. And while this migration gives us an advantage relative to other markets across the country, with few exceptions it is also among the most difficult areas to acquire suitable land and develop and build a new project.

The expertise and effort to perform successfully make our members best in class. As a result, we should target a best in class association and membership experience.

I am looking to better leverage opportunities to collaborate with MSBA, HBAM, NAR, Chambers of Commerce and others by structuring regular leadership/ liaison meetings with those stakeholder groups to discuss areas of common concern and collaborate on strategic initiatives.

In my experience elected officials want and need to hear from the principals and owners of our member companies who have the greatest stake in the outcomes of governmental proposals and who are the job creators.

In a strategic way, we need to broaden lobbying/advocacy participation by more of our members at the state and federal government levels! Our message is one of do no harm, know the facts, and govern in a timely productive manner that can restore consumer confidence in the future.

As members of this association, I believe we all have a collective obligation to perform the following basics. First, get informed, stay informed and actively participate and engage in our advocacy efforts. We have great information resources on our website. Secondly, recruit a member or retain a member. Membership retention and growth is our foundation and we gain strength and influence with every new member. Third, volunteer on a committee or council.

We have many dedicated individuals who have worked hard for many years on behalf of the entire membership and industry as a whole. We need your help, your ideas, and a shared responsibility to do the work. Last but not least, contribute to the HousingMaryland Political Action Committee (PAC) to help provide access and support to those candidates who can assist in achieving our goals.

In closing, I would like to acknowledge Diane Swenson our Executive Vice President and her dedicated hard working staff including; Hamer Campbell, Vice President Government Affairs, Robert Kaufman, Associate Director Government Affairs, Annette Rosenblum, Associate Director Regulatory Affairs, Kelly Grudziecki, Communications Director, Jean Mathis, Director Membership & Events, Lisa Goheen, Manager Builders Development Guarantee Group, and Patti Kane, Director Home Builders Care Foundation and thank them in advance for all they will be doing on behalf of our entire membership all year long and to ask for their patience with me as I tackle my new role and responsibilities. m

MNCBIA Leadership Awards Hamer Campbell Honored with Kettler Award F. Hamer Campbell, MNCBIA’s Vice President of Government Affairs was selected as the 2011 recipient of MNCBIA’s Milton E. Kettler Award, which is presented in recognition of a lifetime achievement of unselfish participation, contributions and service not only to the MNCBIA and to the building industry, but to the community.

Hamer received the Award in recognition of 28 years of dedicated service to the MNCBIA. His expansive knowledge of the building industry and his keen judgment have been crucial to the success of this industry throughout the years. Hamer has contributed immeasurable hours reviewing thousands of bills, drafting countless letters, testifying before hundreds of council hearings and lobbying local and state officials, all of which has directly resulted in legislative victories as well as defeating adverse legislation. In the political world he has earned high respect among elected and appointed officials throughout the region, particularly in the State Legislature, Prince George’s County and the Southern Maryland region.

Outside of the Association Hamer devotes many hours to his local Mason chapter as their scribe. He is also a member of the Christian Community Presbyterian Church, where he has been an Elder and a Deacon, and where he regularly volunteers at functions throughout the year. In his free time, Hamer is a devoted husband and father to his wife Chris and two daughters, Suzie and Amanda, and a doting grandfather to his three year old granddaughter Gracie who is quickly transforming him into an expert on American Girl dolls.

Hamer is an important treasure in the building industry and part of the foundation on which the MNCBIA was built and he is most deserving of this distinguished award.

2011 President’s Award E ach year the President has the difficult job of awarding the President’s Award. This Award is given to an Association member who has gone above and beyond in his or her service to MNCBIA. As I attended meetings as President this year, and received updates on others, it was hard to imagine just how much hard work is put in by our members. We have hundreds of members who take countless hours out of their busy schedules to attend meetings, make phone calls, come to events and much more to get the job done; we could not have the type of Association that we do without the many volunteer hours. As overwhelming as everyone’s contributions were, there was one person in 2011 who stood above the rest.

Mike Schueler of Winchester Homes has been the chair of the PROS Awards for the past three years and has really been the heart and soul of that event. PROS is one of MNCBIA’s biggest annual events and the planning takes most of the year. In addition, Mike was able to lead his committee in fundraising to bring $45,000 in sponsorships in what we know is an extremely difficult year for our industry. Knowing the nature of the economy Mike didn’t just go after a few big contributors, he put in the extra work of finding $250, $500 and $1,000 event sponsors. The PROS Awards was very successful, despite the obstacles this year, and Mike played the key role in making sure that happened.

If that wasn’t enough, Mike was very active on the Membership Committee, even agreeing to take on a larger role when we lost our previous Co-Chair. He worked hard to not only bring in new members, but also brought back many lapsed members. Mike fully understands the benefits and responsibility of membership in MNCBIA and I am honored to award him the 2011 President’s Award. m

The award presentation was made by 2010 Kettler Award recipient, Tom Farasy on December 3 at the Winter Gala held at the Columbia Country Club in Chevy Chase, MD. m

Robert Harris Receives Rodgers Award

2011 Member of the Year Awards

Robert R. Harris of Lerch, Early & Brewer Chtd. was selected as the 2011 recipient of MNCBIA’s Joseph C. Rodgers, Sr. “Associate Member of the Year” Award. The award is presented annually in recognition of extraordinary and outstanding services by an Associate member to the Association.

Bob has earned the designation of Life Director on the Board of Directors of MNCBIA by giving more than 10 years of service to the Board. In addition, for several years, Bob has served as the Chair of the Commercial Builders Council, bringing in many commercial members by inviting them to the council’s meetings. Bob then would discuss all the items of concern to Commercial Builders and introduce them to the BIA. Not long after, they would join the Association. Bob also served for over 10 years on the Montgomery County Liaison Committee and had a major impact on the BIA’s relationships with decision makers in the County. As someone always stepping up to serve as a knowledgeable speaker offering testimony at Council Hearings, Bob has served our Association with dedication and integrity. The MNCBIA is proud to recognize Robert R. Harris with the Rodgers Award. He is definitely well deserving of this honor.

The award presentation was made by 2010 Rodgers Award recipient, Frank Bossong, IV on December 3 at the Winter Gala held at the Columbia Country Club in Chevy Chase, MD. m

The MNCBIA, honored seven of its’ members with the 2011 Member of the Year Awards on October 20 at an awards dinner at the Greenbelt Marriott. The developer and builder awards are chosen by the associate and subcontractor members and the associate and subcontractor awards are chosen by the builder members. Points are awarded in recognition of quality control, professionalism & ethics in dealing with trades and services, job scheduling, on-site engineering, project planning, workmanship, service, marketing and management effectiveness. m The winners were…

Small Volume Builder of the Year Sandy Spring Builders, LLC

Developer of the Year Pleasants Development, Inc.

Medium Volume Builder of the Year Mid-Atlantic Builders, Inc.

Subcontractor/Supplier of the Year Arnold Parreco & Sons

Large Volume Builder of the Year K. Hovnanian Homes

Associate of the Year Jonathan I. Kipnis

High Production Builder of the Year Winchester Homes, Inc.

BUILDING IN MARYLAND AND WASHINGTON, DC

|

JAN/FEB 2012

7

A Q&A with Steve Nardella 2012 MNCBIA President their needs and desires in good locations with the amenities that were important to them. There is no question that most prospects are looking for deals, but the fundamental desires that drive housing demand whether it is a couple getting married or having children, an employee moving to the area to fill a new job, or people who simply want to improve their lives, are as relevant now as they ever have been. Our challenge as builders and marketers of new homes is to restore the confidence in our potential customers that has been eroded over the past few years about the soundness of their new home buying decision.

S

tephen Nardella, Senior Vice President of Operations for Winchester Homes Inc., is the 2012 president of the Maryland-National Capital Building Industry Association.

Commenting on his new Presidential role, Steve said, “I would like to thank the entire membership and association staff for the trust and confidence they have placed in me. I urge the entire 2012 leadership team to work on our collective behalf to maintain reasonable business environments in which we may operate and restore confidence in the future with our potential customers in each of our markets. The dream of homeownership remains a goal for our citizens and the beneficial economic impacts of our industry are indisputable.”

As Steve prepares to take on this presidential challenge in yet another tough economic year, the MNCBIA asked him about his plans for the year ahead.

What has changed about the homebuyers and the market in the Metro DC area coming out of this recession?

I am not sure much has changed with homebuyers coming out of the recession. In the early part of the recession say late 2006, many builders were trying to adjust to rapidly falling demand by drastically lowering prices.

This was accomplished by introducing much smaller homes with far fewer amenities in order to get to the lowest possible cost. I think what we found was that those actions really did not stimulate additional demand. Any potential buyers that were left in the market still wanted a home that served

8

JAN/FEB 2012 |

How do you see the industry changing in response to the downturn we have faced in the DC/local market?

Housing production is less than half of what we would consider normal market conditions and to which we had grown accustom over say the 20 year period of the mid 80’s through the mid 2000’s. Unfortunately, it has been that way for the last five years and like it or not I believe we are in for a long slow but gradually improving market. Despite great fundamentals for buying, such as plenty of choice, affordable prices, and very low mortgage rates, there seems to be a lid on the pace of market improvement. The fact is there are fewer qualified buyers able or willing to make a move and job and income growth is not what we had expected at this point in the cycle. And, as I mentioned above, confidence in the market remains very low.

As a result, our industry is smaller with fewer operators producing fewer homes. However, if a building or development company or any company that supports our industry is still operating in the DC area, substantial adjustments have been made in the way products and services are delivered. Operating and production costs have been substantially reduced despite impact, permit and other fees continuing to rise, products and services are delivered more efficiently, new products that appeal to customers with high expectations of quality and service but also at greatly reduced cost have been developed, expertise in cash flow management and finance have been refined, and all of this has been accomplished while we fight the never ending battle of new regulations that add cost and time to home production. All of these actions have made us better companies and it will be important to maintain these disciplines and not to forget the important lessons of the recent past.

How do we get out the message of homeownership and jobs?

One of my goals for 2012 is to roll out a PR campaign that would resonate with potential home buyers, elected and appointed officials and the general public about the economic benefits of our industry. It needs to start with educating consumers that it is a great time to buy and that there is a market out there.

With governmental officials we need to be relentless about demonstrating the positive economic and environmental impacts that our industry provides.

Development and building is a local industry and the vast majority of the costs of any project are spent at the local level. Everything from professional services, to earthwork and paving to bricks and lumber to cleaning services are locally contracted. And of course we cannot forget about permit and application fees, transfer and recording costs, and new tax assessments that flow to local and state government. Finally all the furnishing and accessories that new buyers pay for is all funneled back into the local economy. From the environmental impact side we are essentially at mitigating 100 percent of our environmental footprint. Between tree and forest cover and water resources

BUILDING IN MARYLAND AND WASHINGTON, DC

management, a new home development, more often than not, leaves behind higher environmental quality than what existed predevelopment.

While the industry contributes greatly to local economies, I am not convinced housing can lead the way out of the nation’s current economic conditions. What started as a housing recession has turned into a global financial meltdown that has impacted virtually every business, family and individual. All the rhetoric I hear about how government at all levels wanting to create jobs simply drives me crazy. Government cannot wave a magic wand and create a job. The single most important thing the government can do is to act in a reasonably civil and responsible fashion and do no further harm to consumer confidence. As this confidence is restored and grows, demand will start to grow and as pressure on the economy to satisfy that demand grows, job and wage growth can result in improving markets across all sectors of the economy including housing.

What issues do you believe will be important for the Association to address in the coming year?

MNCBIA’s mission and vision of advocacy for the industry and maximizing business opportunities for our members remain unchanged. However, due to the current economic and political environment, how we execute our mission must evolve. Our main areas of focus will be continuing to fight for a productive, predictable and cost effective business environment. We intend to maintain our vigilance at the local and county government levels while ramping up our influence and effectiveness at the state and federal levels, as this is where major environmental and mortgage and housing finance regulations are originating that are constraining our industry.

In the face of the association’s revenue constraints we must find ways to improve member experience through networking and education events that can help our members improve their performance and grow their business as the industry slowly recovers throughout 2012 and beyond.

What Association business will need tending?

We must ensure a strong financially viable association in order to serve the needs of our membership. It must be the mission of every member to work to retain existing members and recruit new builder and associate members.

While membership dues are the foundation of our revenue source, we must find ways to create non-dues revenue opportunities through education, training, networking, or other events and with residual revenue sources and

opportunities. However, we currently have 35 committees, councils, and subsidiaries all that require some level of staff time and expense. We need to evaluate each one of these to ensure they provide value and relevance to our mission and continue the progress we have made and look for additional ways to consolidate activities, streamline and be more efficient in our operations.

“If you are not a member of this organization, I truly believe you will be left behind. If you are a member and not active on a committee or council, then you are not leveraging the opportunities that are available to grow and improve.”

Finally, we are exploring the opportunities and challenges of merging with the Home Builders Association of Maryland. The Board of Directors has authorized an exploratory committee to examine how association advocacy effectiveness can be enhanced while gaining cost efficiency through a larger, combined organization. The work of this committee and its recommendations, which the board will consider sometime in the first half of 2012, could be the single biggest decision we will face as an organization.

Why is the MNCBIA relevant in today’s business and governmental climate?

Given the ongoing challenges of our industry and its members, the MNCBIA and the hard work of its staff provide the ongoing support and expertise to champion our advocacy efforts in the broad and varied geography in which we work. This is truer today where there is simply no margin for error than when markets are humming, prices are rising and we can better absorb regulatory roadblocks and costs. Through various committees and councils, the association provides relevant and timely education and training to help members improve job skills and expertise and learn about market and product trends. All of these efforts are employed to improve the business environment in which we work and to provide an edge to improve the performance of our member companies. The issues are simply too great to take on individually. It takes the coordinated efforts of member companies

BUILDING IN MARYLAND AND WASHINGTON, DC

|

JAN/FEB 2012

9

very valuable and rewarding to me personally and to the company for which I was working. Participating in the liaison and later environmental committee helped me gain knowledge and expertise on a variety of issues but also I hope, credibility and mutual respect with my peers, colleagues and, those important government personnel and officials. Along the way, I developed new friendships and associations through working collaboratively with those who were often competitors and gained measurable business opportunity through the networking. If you are not a member of this organization, I truly believe you will be left behind. If you are a member and not active on a committee or council, then you are not leveraging the opportunities that are available to grow and improve. supported by expert staff and boots on the ground diligence by a large group of professionals from many fields to influence the outcome of governmental proposals and issues.

How has your involvement in MNCBIA helped you in your job?

I first became involved in the Association as a member of the Montgomery County Liaison Committee in the early 1980s. I quickly came to realize that being involved with the committee and regular attendance at their meetings provided an early warning system for new regulatory and legislative efforts that would affect my work. What felt like inside information that I could immediately use in my day-to-day work provided me and my company a competitive advantage. As my involvement grew in the liaison committee with participation in special task force groups or subcommittees focused on a particular issue I found myself meeting with elected officials and other high level appointees in county government. For a young professional trying to grow a career I found this newly acquired access not only exciting but

10

JAN/FEB 2012 |

What are you most proud of in your work within the building industry?

For me from an industry perspective, there are so many opportunities for pride, success, job satisfaction and accomplishment. This business is very difficult, requiring much patience and perseverance but also very rewarding.

Acquiring, developing and building a new project involves so many different and complex challenges and I have been fortunate to have had the opportunity to be involved in all of them. Whether it is finding and landing a strategic land acquisition, achieving a governmental approval milestone, paving lots in a new project, or greeting a delighted family after they close the home of their dreams, I am proud to be a part of an industry that improves people’s lives, the environment, and the communities in which we live and work.

From an association perspective, the thing I am most proud of is that point when I was recruited to serve on the board of directors that resulted in real satisfaction in serving our membership and working on the long-term viability of a truly great, best-in-class association. m

BUILDING IN MARYLAND AND WASHINGTON, DC

The Legal Pad Update on the EPA and Corps Unlawful Attempts to Expand Their Clean Water Act Jurisdiction Without Following Proper Rulemaking Procedures

By Karma B. Brown and Kerry L. McGrath, Hunton & Williams LLP

A

s those in the construction industry are well aware, builders must obtain dredge and fill permits under Section 404 of the Clean Water Act (CWA) if their construction project will result in the discharge of dredged or fill material into a “water of the United States.” The definition of the “waters of the United States” is a highly contentious issue, and, for decades, industry and environmentalists alike have urged the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (jointly, the Agencies) to conduct a rulemaking to clarify which waters are subject to CWA jurisdiction. But the Agencies have steadfastly refused to heed that call, instead adopting guidance after guidance unlawfully expanding their own jurisdiction.

Attempts by the Agencies to expand their CWA jurisdiction through guidance have been rejected by the U.S. Supreme Court on two occasions.

First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court rejected the Agencies’ attempt to assert CWA jurisdiction over an isolated sand and gravel pit that did not actually abut a navigable waterway. 531 U.S. 159, 174 (2001). Then, in Rapanos v. United States, the Court rejected the Agencies’ assertion of CWA jurisdiction over any non-navigable water that has “any hydrological connection” to navigable waters. 547 U.S. 715, 734, 784 (2006). In Rapanos, the Court itself urged the Agencies to conduct a rulemaking to clarify the scope of their CWA jurisdiction.

But the Agencies proceeded as they had in the past — by issuing yet more guidance. In May 2011, the Agencies released a “Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act” (Draft Guidance). Rather than provide an appropriate and clear definition of “waters of the United States,” the Draft Guidance is, instead, complicated legalese that is very difficult to understand let alone implement in the field. Although the Rapanos plurality lambasted the Agencies for regulating ditches, drains, and desert washes far removed from navigable streams, under the Draft Guidance, essentially all ditches and ephemeral features would be regulated.

Similarly, in Rapanos, Justice Kennedy rejected the Corps’s previous standard for tributaries that relied on possession of an ordinary high water mark (OHWM) as overbroad, but the Draft Guidance provides a standard for tributaries that again relies on OHWM. In addition, the Draft Guidance’s assertion of jurisdiction over certain isolated waters is inconsistent with the SWANCC Court’s holding that isolated ponds that did not actually abut a navigable waterway were not jurisdictional under the CWA. Although the Agencies have not confirmed whether they intend to finalize the Draft Guidance, they have announced that they plan to propose and take comment on a rule in January 2012 to address the scope of CWA jurisdiction. But the Agencies claim that, in promulgating any such rule, they are not required to comply with mandatory statutory and regulatory requirements, such as the Small Business Enforcement Fairness Act (SBREFA) and the Regulatory Flexibility Act (RFA). Among other things, these laws require the Agencies to take a number of important steps to ensure they adopt the least burdensome alternative for small business. EPA mistakenly claims that certain informal outreach it has conducted by meeting with select representatives from various trade organizations and environmental groups is “indistinguishable” from the process required by SBREFA and the RFA. However, EPA has not satisfied these laws’ requirements because, among other things, it excluded several legitimate small business interests that requested to be included in the meeting and failed to show that it is considering any alternatives other than the Draft Guidance that would be less burdensome to small business interests.

Rather than proceed with undue haste with a rulemaking that simply mirrors the opaque Draft Guidance, many groups, including the National Association of Home Builders, have recommended that the Agencies begin this process with an advanced notice of proposed rulemaking requesting broad input on how the Agencies’ current CWA jurisdictional regulations should be clarified and the scope of any proposed rulemaking. Although it is unclear exactly how the Agencies will proceed, it is likely that the general public will have a relatively short window to provide comments. Therefore, it is important for builders to think about how the scope of CWA jurisdiction affects the construction industry and how your experience in the field can be incorporated into comments that demonstrate the specific areas of CWA jurisdiction that require clarification. m Ms. Brown and Ms. McGrath are attorneys with the Washington, DC office of Hunton & Williams LLP. Ms. Brown is a member of the National Association of Home Builders’ Legal Action Committee and has practiced environmental law for over a decade. Her practice focuses on CWA issues. Ms. McGrath practices environmental and administrative law with a focus on the CWA. They may be contacted at kbbrown@hunton.com or kmcgrath@hunton.com. This article presents the views of Ms. Brown and Ms. McGrath and not necessarily those of Hunton & Williams or its clients, or of NAHB’s Legal Action Committee. The information presented is for general information and education purposes. No legal advice is intended to be conveyed; readers should consult with legal counsel with respect to any legal advice they require related to the subject matter of the article.

BUILDING IN MARYLAND AND WASHINGTON, DC

|

JAN/FEB 2012

11

The Engineer’s Angle The OSHA Inspection Process Courtesy of the National Association of Home Builders

T

he construction industry has historically been deemed a “high hazard industry” by the federal Occupational Safety and Health Administration (OSHA) and, as a result, home builders are frequently the subject of OSHA inspections.

Employers will typically not receive advance notice of an inspection.

In fact, an OSHA compliance officer (i.e., inspector) can be criminally prosecuted for giving unauthorized advance notification of an inspection.

As a result, home builders must fully prepare their worksites for an OSHA inspection and ensure their employees are trained in how to interact with a compliance officer in the course of an inspection.

The Inspection Process Verify the OSHA Compliance Officer’s Credentials When the compliance officer arrives, he or she should display official credentials. These credentials can be verified by contacting the nearest OSHA office. If the compliance officer does not offer credentials, employers should request to see them. Under no circumstance should a compliance officer collect money or promote the sale of any product at any time during the inspection. If such an instance occurs, the compliance officer is conducting OSHA business improperly or is an imposter and should be reported to the local OSHA office or the local authorities.

Be Polite and Respectful Once a compliance officer arrives on a jobsite, it is important to maintain a business-like manner. Also, make sure your superintendent or foreman and subcontractors know how to act when a compliance officer arrives if the builder or safety representative is not usually on the jobsite. The superintendent or foreman should request permission to contact the builder or safety representative, but the inspection will not be delayed indefinitely.

Employers do have the legal right to demand a search warrant before allowing OSHA to inspect a jobsite. The decision about whether to demand a warrant, however, is your decision, and is best made with advice from your legal counsel.

Participate in an Opening Conference Upon arrival, the compliance officer will ask the builder or his representative, along with all subcontractors on site or their representatives, to participate in an opening conference. The compliance officer will explain how the site was selected and explain the purpose of the visit and the scope of the inspection.

During the opening conference, the compliance officer may also examine work- place records such as the OSHA 300 injury and illness log and the written safety and health program for the builder and each contractor.

Select Employer Representatives Before the compliance officer begins the inspection, the builder and each contractor will normally be asked to select a representative to accompany the inspector. If the job is unionized, then a union representative may also accompany the compliance officer. If the job is non-union, the compliance officer may ask to speak to employees of each contractor. An employer representative should accompany the inspector at all times during the walkaround.

Participate in the Walkaround During the walkaround, the compliance officer will observe safety and health conditions and practices; consult with employees privately, if necessary; take photos or videotape; take air and noise samples; and survey engineering controls. The scope of the walkaround is limited to the scope and purpose of the inspection.

The compliance officer will assess compliance with OSHA’s construction safety standards and the General Duty Clause of the Occupational Safety and Health Act. The compliance officer will sometimes point out any unsafe or unhealthy conditions during the inspection. The compliance officer may also discuss possible corrective actions.

Take Notes and Pictures The compliance officer will take notes, pictures and/or videotape.

Employers should attempt to take a matching set of photographs from the same angle as the compliance officer and take notes on what the inspector has said and also note any items that were corrected immediately. In addition, employers should take additional photos from other angles that may eventually support a defense to citations, should citations by appealed.

Participate in a Closing Conference After the walkaround is concluded, the compliance officer will conduct a closing conference with all contractors. The compliance officer will describe the alleged violations and the OSHA construction safety standards that may have been violated. At the closing conference stage, the citations are not final. Thus, compliance officers will not typically discuss proposed penalties at the closing conference. Any citations and penalties will be received later by certified mail, which could take up to six months to be issued.

During the closing conference, employers should produce any records to show compliance efforts with OSHA standards, such as a written safety program, training logs, etc. Any effort to show good faith compliance can help to reduce proposed penalties. The compliance officer will also explain the appeals process for contesting citations. m For more information about the OSHA Inspection Process, contact the National Association of Home Builders (NAHB) Labor, Safety, & Health Services Department at 1-800-368-5242, ext. 8507.

12

JAN/FEB 2012 |

BUILDING IN MARYLAND AND WASHINGTON, DC

MNCBIA Membership New Members & Reinstatements (10/1/11 - 11/30/11) BUILDERS BCR Builders Custom Building/Remodeling Alan Rahimi 5 Grey Pebble Court Darnestown, MD 20874 Ph: 301-704-6465 Fax: 301-990-0708 rahimi.alan@gmail.com Bethesda Too, LLC Building Multi-Family Developer Carole Sherman 5925 Bradley Boulevard Bethesda, MD 20814 Ph: 240- 602-6118 Fax: 301-320-2993 csherman66@aol.com Sponsor: Marty Mitchell

Sunbrook Partners Builder/Developer Steve Conijilo 7272 Wisconsin Avenue, Suite 300 Bethesda, MD 20814 Ph: 703-856-6860 sconijilo@sunbrookpartners.com Sponsor: Steve Nardella

ASSOCIATES Boman Kemp Manufacturer’s Representative/ Windows Insulated Ryan Thornock 12226 Pulaski Highway Joppa, MD 21085 Ph: 410-538-8880 Fax: 410-538-8882 thornockr@boman-kemp.com Sponsor: Marty Mitchell

East Coast Millwork, LLC Manufacturer’s Representative/ Building Materials Theresa Rutter 4821 Winchester Boulevard, Unit III Frederick, MD 21703 Ph: 301-874-1120 Fax: 301-874-1160 trutter@cecmillwork.com Sponsor: Clark Wagner

SunTrust Mortgage, Inc. Mortgage Banking Patrick Casey 1445 Research Boulevard, Suite 400 Rockville, MD 20850 Ph: 301-517-5401 Fax: 301-762-6157 pat.casey@suntrust.com Sponsor: Charles F. Stuart, Jr.

Recycled Aggregates, LLC Recycled Materials Mary Abruzzo 1721 South Capital Street SW Washington, DC 20003 Ph: 240-788-3606 Fax: 202-507-4677 mabruzzo@re-agg.com

MNCBIA’s Most Wanted List

Listed here are firms whose membership in MNCBIA has lapsed in recent months. WE WANT THEM BACK! Please encourage these companies to reinstate their membership. Also listed are prospective members we are working to add to our team.

All Temp Heating & Air Conditioning • AMEC Contracting • Aeroteck • Barrons Lumber • Bull Run Quarries • Closet Factory • Colorworld Painting & Drywall • Comstock Services • Dan Ryan Builders • DeFiore Designs • Dimple Construction • Domus Partners, LLC • DOW Solutions • ECS Mid-Atlantic • Guardian Realty Mngmt., Inc. • Georgetown Bank • Hatfield Equipment Services • InSight Marketing • JW Shipley • MAAX Bath, Inc. • Patriot Land & Wildlife • Richmond America • Tower Companies

STARS Club (as of 12/1/11)

The special members of MNCBIA’s STARs Club allow the Association to provide better services for your benefit, to function effectively, to continue special events dedicated to excellent networking and to strengthen our Advocacy program.

GOLD

SILVER

BRONZE

FRIEND

DGG-MC Elm Street Development NV/Ryan

Georgetown Insurance Service, Inc. Linowes & Blocher, LLP Rodgers Consulting Winchester Homes

Charles P. Johnson & Associates Burgess & Niple Gutschick, Little & Weber, P.A. Reznick Group Shulman Rogers St. Charles Community, LLC Washington Gas

Bozzuto Homes Dico, Inc. Dewberry K Hovnanian Homes Michael Harris Homes Ward & Klein

BUILDING IN MARYLAND AND WASHINGTON, DC

|

JAN/FEB 2012

13

Events Calendar 8

January 2012 4

Environmental Committee Meeting

6 Prince George’s County Liaison Committee Meeting

11 Green Building Committee Meeting Codes & Standards Committee Meeting

12 WSSC Liaison Committee Meeting

17 Real Estate Finance Committee Meeting

18 Calvert & St. Mary’s County Liaison Committee Joint Meeting Charles County Liaison & Chamber PGM Committee Meeting

19 Home Builders Care Foundation Board Meeting

23

International Builders Show Green Building Committee Meeting Codes & Standards Committee Meeting

9

International Builders Show WSSC Liaison Committee Meeting

10

International Builders Show

11

International Builders Show

13 State Government & Legislative Affairs Committee Meeting

14 Real Estate Finance Committee Meeting

15

Calvert & St. Mary’s Liaison County Committee Joint Meeting Charles County Liaison & Chamber PGM Committee Meeting

State Government & Legislative Affairs Committee Meeting

20

26

23 MNCBIS Board of Directors’ Meeting

MNCBIA Board of Directors’ Meeting Membership Dinner & 2012 Installation

State Government & Legislative Affairs Committee Meeting

27

30 State Government & Legislative Affairs Committee Meeting

State Government & Legislative Affairs Committee Meeting

February 2011 1

Environmental Committee Meeting

2 Executive Committee Meeting 3 Prince George’s County Liaison Committee Meeting

INDEX OF ADVERTISERS Appliance Distributors Unlimited, Inc..............................................Back Cover Builders Mutual Insurance Company..................................................Page 15

6 State Government & Legislative Affairs Committee Meeting

Craftstar Homes.............................................................................Page 14 GE Appliances...............................................................................Page 03 JG Landscaping.............................................................................Page 06 Linowes & Blocher LLP...................................................................Page 10 Monument Bank............................................................................Page 11 Shulman Rogers............................................................................Page 10 Signature Companies......................................................................Page 04 Vintage Security.............................................................................Page 02

14

JAN/FEB 2012 |

BUILDING IN MARYLAND AND WASHINGTON, DC

1738 Elton Road, Suite 200 Silver Spring, MD 20903