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September 2026 |  Issue 17

Court Upholds EPA PFAS Designation

On August 18, 2026, the D.C. Circuit unanimously upheld EPA’s designation of PFOA and PFOS as “hazardous substances” under CERCLA in Chamber of Commerce v. EPA. The ruling allows EPA to use CERCLA’s cleanup and cost-recovery tools against potentially responsible parties connected to PFAS contamination.

The court also agreed that CERCLA does not require certainty that a substance will cause substantial harm. Rather, EPA may designate a substance when its release "may present substantial danger" to public health, welfare, or the environment.

 Takeaway: Contractors involved in demolition, remediation, waste handling, industrial work, or contaminated sites should pay closer attention to PFAS exposure, disposal practices, indemnity provisions, and environmental risk allocation. Liability is not automatic, but PFAS will likely become an increasingly important issue in project due diligence and contract negotiations.

Case Law Update

General Contractor Owed No Safety Duty to Subcontractor’s Injured Roofer

Case: Suquilanda v. Skyway Roofing, Inc., SJC-13878 (Mass. Aug. 17, 2026).

Facts: A roofer employed by subcontractor MBT Construction Corp. fell from a roof while replacing shingles at Jiminy Peak Mountain Resort and suffered catastrophic injuries. He sued general contractor Skyway Roofing for negligence and negligent hiring, arguing that Skyway controlled jobsite safety and knew MBT had prior OSHA fall-protection citations. MBT, however, controlled the means and methods of its work and supplied its own fall-protection equipment.

Holding: The Massachusetts Supreme Judicial Court affirmed summary judgment for Skyway. The court held that a general contractor does not owe a subcontractor's employee a duty of care under the retained-control doctrine unless the general contractor retains or exercises control over the injury-producing work or safety practices. General direction of the work, status as the general contractor on the building permit, and a contractual obligation to maintain a safe worksite were insufficient. The court also held that, under these circumstances, Massachusetts law does not recognize an independent negligent hiring duty owed by a general contractor to the subcontractor's own employee.

 Takeaway: Contract language and actual jobsite practices matter. A general contractor that does not assume control over a subcontractor's means, methods, or specific safety practices may substantially reduce its exposure for injuries to the subcontractor's employees. Contractors should carefully draft safety provisions so that general oversight and enforcement rights do not inadvertently create operational control over a subcontractor's work.

Testing and Destructive Investigation Allocation Provision

Background

When a defect or water intrusion is alleged, owners and consultants often demand testing, core cuts, probes, tear-offs, or other destructive investigation before anyone knows whether the contractor's work actually caused the problem. These investigations can become expensive, particularly when they require removal and replacement of completed roofing, waterproofing, insulation, finishes, or other building components.

A contract should address who pays for that investigation. Without clear language, the contractor may be expected to absorb substantial testing and restoration costs even when the investigation ultimately confirms that its work complies with the contract documents or that the condition originated elsewhere.

A testing and destructive investigation provision shifts those costs based on the outcome. If the investigation establishes defective or nonconforming contractor work, the contractor bears the reasonable cost. If the contractor's work complies with the contract requirements, the owner bears the investigation and restoration costs.

Contract Provision

Testing and Destructive Investigation. If Owner, Architect, Consultant, or any other party acting on Owner's behalf requests testing, destructive investigation, exploratory openings, core samples, removal of completed Work, or other investigation to determine whether Contractor's Work is defective or nonconforming, Owner shall initially bear all costs associated with such investigation, including testing, consultants, access, removal, protection, and restoration.

If the investigation establishes that Contractor's Work materially fails to comply with the Contract Documents and that such noncompliance caused or contributed to the condition being investigated, Contractor shall reimburse Owner for the reasonable and necessary costs of the investigation and shall correct the nonconforming Work as required by the Contract.

If the investigation does not establish such noncompliance, Contractor shall have no responsibility for the investigation or restoration costs, and any Contractor labor, materials, equipment, supervision, delay, disruption, remobilization, or restoration associated with the investigation shall constitute a Change in the Work entitling Contractor to an equitable adjustment of the Contract Sum and Contract Time.

OSHA has renewed its National Emphasis Program (NEP) targeting warehousing and distribution center operations, signaling that employers in these industries should expect continued scrutiny of workplace safety practices. The revised directive, CPL 03-00-026, became effective July 31, 2026, and will remain in effect for five years.

The program covers warehousing and distribution centers, certain U.S. Postal Service processing and distribution centers, courier and express delivery services, local delivery operations, and several categories of warehousing and storage. OSHA will conduct comprehensive safety inspections at establishments selected under the NEP rather than inspections limited to a single hazard or complaint.

OSHA identifies several recurring hazards as areas of particular concern, including powered industrial vehicles, materials handling and storage, walking-working surfaces, means of egress, heat, ergonomics, and fire protection.

The agency's rationale rests heavily on injury statistics. OSHA reports that during the first 18 months of the original warehouse NEP, inspectors identified more than 1,700 violations and removed approximately 37,410 workers from hazardous conditions. The warehousing and storage workforce also more than doubled between December 2015 and December 2025, increasing from approximately 882,100 to more than 1.8 million employees.

The injury data remains significant. For 2020 through 2024, all private industry averaged a recordable case rate of 2.6 and a DART rate of 1.6. General warehousing and storage recorded rates of 5.2 and 4.4, respectively. Couriers and express delivery services reported even higher rates of 8.6 and 6.9.

The 2026 version makes several notable changes. OSHA removed high-injury-rate retail establishments from the program and eliminated mandatory screening requirements for ergonomic and heat hazards. Those hazards, however, have not disappeared from OSHA's enforcement focus. Area Offices retain discretion to expand inspections arising from fatalities, catastrophes, complaints, or referrals to address hazards such as heat and ergonomics.

Employers should also expect inspectors to look closely at recordkeeping. During the opening conference, OSHA will verify the establishment's NAICS code and employee count and review OSHA 300 logs, 300A summaries, and 301 incident reports for the current and previous three calendar years.

For construction material suppliers, roofing distributors, and other businesses operating warehouse and distribution facilities, the key threshold will be the establishment's NAICS classification. The NEP specifically limits inspections under the program to the listed warehouse, courier, delivery, and postal classifications.

 Takeaway: Employers covered by the warehouse NEP should treat an OSHA inspection as a foreseeable event rather than a remote possibility. Now is the time to audit forklift operations, material storage, walking-working surfaces, emergency exits, fire protection, heat procedures, ergonomics, and OSHA recordkeeping. Equally important, employers should train managers on what to do when OSHA arrives. With comprehensive inspections authorized under the program, a compliance officer entering the facility for one apparent concern may examine substantially more than the condition that initially drew OSHA's attention.

Upcoming Speaking Engagements & Events

• National Slate Association Conference, September 16-18, Annapolis, MD

• IIBEC Commercial Roofing Symposium, September 22 and 23, Gulfport, MS

• Western States Roofing Expo, September 26-29, Las Vegas, NV