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Welcome
Welcome to our seventh issue of 2026 of The Site Report – our construction law insights e-newsletter.
We are very pleased to announce that Eric W. Iskra will begin his one-year term as Chair of the American Bar Association’s Section of Labor and Employment Law on August 1. His election to one of the ABA’s most prominent leadership positions is a testament to his thoughtful leadership abilities, his legal acumen, and his career-long dedication to advancing the practice of labor and employment law. Congratulations! Click here to learn more.
Spilman is pleased to sponsor the Gas & Oil Association of West Virginia’s Summer Meeting, being held August 2-4 at The Greenbrier in White Sulphur Springs, WV. GO-WV has organized an excellent lineup of speakers during the industry presentations and provides an ideal opportunity to network with those in the industry. Click here to learn more.
Thanks for reading.
Stephanie U. Eaton - Co-Chair, Construction Group and Editor, The Site Report
Julian E. Neiser - Co-Chair, Construction Group and Chair, Litigation Department
Jonathan A. Deasy - Assistant Editor, The Site Report
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By H. Dill Battle III
For construction employers, the experience modification factor, or E-Mod, is not just an insurance metric; it is a business performance indicator that affects premium cost, competitiveness, and credibility in the marketplace. Your E-Mod directly affects final workers’ compensation premium and, for many contractors, also affects access to bid opportunities and revenue streams. In a construction setting where margins can be thin and qualification standards are often strict, that makes E-Mod a routine risk-management issue.
Click here to read the entire article.
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Update on North Carolina Budget and Implications on Construction Industry
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The long-awaited North Carolina budget (Session Law 2026-41) contains a whole host of implications for the construction industry that the Spilman Construction Law Practice Group is evaluating. One aspect of the budget bill that may not have caught as many eyes initially, however, is already having impacts on active, out-to-bid, and planned state and municipal construction projects across North Carolina. Part of the 634-page Session Law immediately abolished the NC Office for Historically Underutilized Businesses and eliminated the entirety of North Carolina’s Minority- and Woman-Owned Business Enterprise (M/WBE) Program, including all goals for M/WBE participation on state projects, all good faith effort requirements and reviews, and all M/WBE program compliance requirements. The new law also specifically prohibits North Carolina governmental entities from establishing their own M/WBE participation goals. However, the new law leaves North Carolina’s companion Small Business Enterprise Program intact and moves its administration from the now-closed HUB Office to the Office of Purchase and Contract.
This change is somewhat in line with the recent changes to the federal government’s Disadvantaged Business Enterprise (DBE) program administered by the Department of Transportation, which underwent a full overhaul via Interim Final Rule in late 2025 and is still in the process of implementing the changes. With the broad changes to the DBE program, many people in the industry have expected companion changes to state-level M/WBE programs to be on the horizon, but the sudden elimination of North Carolina’s M/WBE program is a faster and more drastic change than many expected. Spilman’s Construction Practice Group is tracking the implications closely and is ready to assist clients across the industry in navigating the new public construction environment.
--- Steven C. Hemric
| | Lessons on Contracts and Fiduciary Duties with Public-Private Partnerships: Analysis of the 11th Cir.’s Decision in The Lane Construction Co. v. Skanska USA | | |
By Allison D. Pauley, Summer Associate and Stephanie U. Eaton
Many significant construction projects are planned, funded and implemented pursuant to joint venture agreements (JVA’s). Before undertaking a JVA, the parties must carefully evaluate contractual obligations and fiduciary duties to the joint venture before the project begins to avoid the pitfalls that befell the litigants in the case of The Lane Construction Co. v. Skanska USA, where the parties had to turn to the court to resolve their complex dispute. Lane Constr. Corp. v. Skanska USA Civ. Se., Inc., 174 F.4th 1 (11th Cir. 2026).
Click here to read the entire article.
| | 21st Century ROAD to Housing Act | | |
By Michael W.S. Lockaby
On July 11, 2026, the 21st Century ROAD to Housing Act (the “Act”) became law without the President’s signature following a 396-13 vote in the House of Representatives and an 85-5 vote in the Senate. While public statements that it is the most important housing bill in generations might be hyperbolic, it is a huge bill that will impact builders and state and local governments for years to come.
One of the major goals of the Act is increasing housing supply. Permitting is frequently cited as a main driver of cost and uncertainty, and is a particular thrust of Sections 107, 205, 206, 209, 501 and other places throughout the Act. While reform to the National Environmental Policy Act (NEPA) process is surely welcome, permitting principally takes place at the state and local level. States adopt enabling legislation, and localities adopt local ordinances that customize the general framework of the state enabling legislation to their unique circumstances.
Click here to read the entire article.
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“The Water Resources Development Act, which would provide $30.5 billion for state revolving funds, passed unanimously through a House committee.”
Why this is important: Thousands of counties, cities, towns, utility service authorities and other eligible entities throughout the United States rely on low-cost clean water and drinking water state revolving fund financing for wastewater and drinking water capital improvements. According to the U.S. Environmental Protection Agency, between 1987 and 2025, the clean water state revolving fund program funded $194 billion in wastewater capital improvements under 53,000 separate loan agreements. This investment has resulted from the states' matching and leveraging of $62 billion in federal capitalization grants, producing $3 in infrastructure financing for every $1 of federal funds. The drinking water program has been in existence only since 1996, but has produced comparable results.
On July 14, 2026, the Transportation and Infrastructure Committee of the U.S. House of Representatives unanimously approved the Water Resources Development Act of 2026 (2026 WRDA) to provide over $30 billion in federal grants to the state revolving funds over the next five years. The 2026 WRDA also addresses various infrastructure projects administered by the U.S. Army Corps of Engineers. The Environment and Public Works Committee of the U.S. Senate passed its version of the 2026 WRDA on July 15. The respective bills await full floor consideration and subsequent conference committee negotiations to reconcile differences before heading to the President. --- Arthur E. Anderson
| | To Regulate or Not to Regulate: The Data Center Paradox | | |
By Matthew J. Wisniewski, Summer Associate and Barry A. Naum
Many believe that the booming data center industry presents a great opportunity for America to be the leader in cutting-edge artificial intelligence innovation; however, potential environmental hazards along with enormous energy demands (and possible increased energy costs) have raised concerns. Numerous stakeholders, including state legislatures and the data centers themselves, are actively working to address these concerns. With Federal regulations recently rolled back, state government officials are now in a position to impose regulations on data centers. But self-regulation may be a more practical, efficient, and long-term solution.
Click here to read the entire article.
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“AI-driven hyperscale data centers are facing new risks and challenges that extend beyond power shortages and chip supply, according to a new report from Zurich North America.”
Why this is important: There have been many articles addressing the high costs, areas of skilled labor shortages, critical material shortages, absence of nearby water resources, and high load energy needs related to data center construction. As if those issues were not enough for data center developers, designers, engineers and contractors to analyze in deciding where to site and construct new data centers, there is another significant challenge that must be evaluated: severe weather events. A new report by a well-known insurer for parties involved in significant construction projects – Zurich North America – identified “6 critical questions to enable a resilient buildout.” In the report, Zurich points to severe weather as the largest source of U.S. losses among its insured builders over the past three years, accounting for 32 percent of losses among its insured data center portfolio (followed by fire and equipment damage). Construction projects in Texas, Tennessee, Wisconsin and Ohio, which are outside the “traditional markets” for data center construction, also raise the risk of tornado, hail and wind damage. Careful planning in the planning, design, and contracting phases of the project to address severe weather hazards, the impact on the job, and relevant risk allocation among the parties can help minimize legal disputes over who is responsible for the inevitable damage that may arise on a data center construction project.
If you are working on the development, design or construction of a data center project, please contact our Construction Practice Group or members of our Data Center Team. --- Stephanie U. Eaton
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“MIT researchers developed a framework that folds a printer’s real-world limits into the optimization, while revealing that better hardware could sharply reduce material use.”
Why this is important: A team of MIT researchers has developed a forward-looking method of bridge construction that is not only efficient, but also environmentally friendly. By 3D-printing concrete, researchers have discovered a way to bypass the burdensome work of pouring concrete into molds. Initially, 3D-printing technology required extensive manual adjustments before the final product was ready, but MIT researchers have found a way to bake those adjustments into the technology itself.
After testing their work by printing a concrete bridge, the researchers set out to replicate their important discovery. They began to measure the exact cost of projects just like their bridge. This advancement will allow printing hardware to improve, offering a viable option for bridge construction and beyond. --- Charlie C. Long, Summer Associate
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“A Texas A&M researcher is studying whether immersive simulations can help prevent workers from becoming desensitized to jobsite hazards.”
Why this is important: Construction can be a dangerous profession. Good contractors know that to minimize worksite accidents, thorough safety training and daily briefs are required. But as construction projects become more and more complex, and previously unknown hazards present themselves, the types of safety training previously implemented – with written maps, diagrams, safety procedures and protocols, PowerPoints or even video – may not identify all hazards in a way that those working among them can appreciate. In an effort to evaluate whether construction workers – particularly those who are desensitized to potential hazardous conditions on their jobsites – will appreciate the dangers through the use of AI and virtual reality tools, researchers at Texas A&M are putting theories to the test. Yes, this would be safety training at a new level.
Consider how, over time, construction workers hear so many alarms, constantly see traffic and equipment moving all around them, and are familiar with known hazards on a job site, that they become desensitized to potential hazards. This is very prevalent on transportation projects where, in a span of 10 years, there were 1,800 fatalities and 167,000 non-fatal injuries caused when vehicles and/or heavy equipment hit workers. The Texas A&M researchers developed a virtual reality roadway construction scene through which workers needed to navigate. During the simulation, researchers studied the workers’ biological responses to what they saw and heard. Armed with information, the researchers then observed the workers who had the virtual reality training when those workers returned to the field, to see if this new type of safety training was impactful. The researchers observed behavior changes among the virtual reality-trained workers, who were more vigilant and attentive to their surroundings than they had been previously.
While this new type of safety training is not readily available yet, the researchers are working on an AI-powered augmented reality system that will be designed to replicate actual jobsites based upon photographs taken of the work area. The AI model interfaces with the potential hazards depicted in the photos (and potentially video). From this information, the AI model can create site-specific safety scenarios through the augmented reality interface. Therefore, the safety training goes from generic to specific, and is more relevant and relatable to workers on their jobsite.
We are interested in whether any of your companies have implemented or are considering implementing AI-generated or VR training for your jobsites, and if so, how have you seen improvements in worker safety? Please let us know by contacting our Construction Practice Group. --- Stephanie U. Eaton
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“The massive plan will fund more than 4,300 construction and infrastructure jobs across the state.”
Why this is important: Virginia maintains the third-largest state-maintained highway system in the country, behind Texas and North Carolina. The Virginia Department of Transportation (VDOT) is responsible for building, maintaining and operating the highway system. VDOT also provides funding for airports, seaports, rail and public transportation.
The Commonwealth Transportation Board (CTB) guides VDOT's work, much like a board of directors. The CTB's 17 members are appointed by the Governor and approved by the General Assembly.
The CTB is required to plan for the financing of transportation needs. To allocate funds for these needs, each year the CTB adopts a program of anticipated projects and initiatives for the upcoming six fiscal years, which is referred to as the Six-Year Improvement Program (SYIP). The SYIP is based on the current transportation funding revenue forecast and must be consistent with the Commonwealth's debt management policy. Funding is allocated first to the maintenance of existing transportation assets, and then to ongoing and new projects.
On June 17, 2026, the CTB adopted the SYIP for fiscal years 2027-2032. The FY2027-2032 SYIP allocates funding for a $28.5 billion infrastructure plan, which is a 6.7 percent increase over the previous SYIP. In addition to support for underway projects, the FY2027-2032 SYIP provides for over $1.9 billion in investment for new projects. --- Arthur E. Anderson
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“Federal rules requiring businesses to protect workers from extreme heat are coming in 2027, and current precautions may not be enough.”
“The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has warned employers that wildfire smoke can present serious health risks for outdoor workers and has urged employers to have plans in place to protect employees when air quality deteriorates.”
Why this is important: The federal Occupational Safety and Health Administration (OSHA) is taking additional steps to protect outdoor workers as patterns of extreme heat and severe wildfires during the summer months intensify. Employers should be on the lookout for new heat-related regulations in 2027, and start taking steps to implement guidance related to wildfire smoke.
About half of states already have or are preparing legislation creating heat-related protections for workers, but OSHA’s new federal regulations would replace the states’ regulations if they take effect next year. OSHA is expected to submit its final proposal in December, with new regulations taking effect in 2027.
These regulations would require businesses to establish heat injury and illness prevention plans for their staff when temperatures reach 85 degrees Fahrenheit. As temperatures rise, businesses will be required to implement additional protocols, such as providing water and cool recovery areas, as well as more frequent breaks.
OSHA is also advising employers to take additional steps to protect outdoor workers from wildfire smoke. Even if wildfires are not burning in your area, wildfire smoke can travel hundreds of miles and create dangerous air quality conditions for anyone spending time outside.
That was the case this summer—and back in 2023—when wildfire smoke from fires in Canada traveled down the East Coast of the United States and lingered for several days. Wildfire smoke contains microscopic particles that can enter the lungs and bloodstream, causing a variety of symptoms and presenting dangerous health risks for people with asthma, heart disease, and other respiratory symptoms.
For those reasons, OSHA is urging employers to take wildfire smoke seriously by monitoring air quality. When air quality is affected, provide more frequent breaks in clean air and allow the use of appropriate NIOSH-approved respirators. --- Jamie L. Martines
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H. Dill Battle III
Member; Chair, Insurance Government Relations & Regulatory Practice Group; Chair, Workers' Compensation Practice Group
office 304.340.3823
dbattle@spilmanlaw.com
Dill's primary areas of practice are workers' compensation, employment relations and counseling, product liability litigation, and commercial litigation.
He is well-versed in defending employers in workers' compensation claims related to workplace injuries, occupational disease, occupational pneumoconiosis and hearing loss. Dill advises employers on leave policies and other employment-related matters. In addition, he defends employer deliberate intent, toxic tort and product liability matters in state and federal courts. Dill has extensive experience with employment discrimination claims in federal and state courts, including age, gender, race and disability discrimination, and harassment cases. He has negotiated successful mediation of wrongful employment discharge, employment contract disputes and premises liability cases.
His distinctions include being named a Fellow of the College of Workers' Compensation Lawyers; serving on the Board of Directors of the College of Workers' Compensation Lawyers; being named the Best Lawyers® 2020 "Lawyer of the Year" for Workers' Compensation Law - Employers in Charleston, W.Va.; AV® Preeminent™ Peer Review Rated by Martindale-Hubbell; nominated by his peers for inclusion in The Best Lawyers in America in the area of Workers' Compensation Law - Employers; and serving on the Larson's National Workers' Compensation Advisory Board.
Dill received his B.A. from the University of Virginia and his J.D. from West Virginia University.
He is admitted to the West Virginia and Virginia State Bars, the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit, the United States District Courts for the Northern and Southern Districts of West Virginia, and the United States District Court for the Western District of Virginia.
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