On January 22, 2015, Florida Senate Bill 456 was introduced, proposing to revise the methods by which a labor pool may pay day laborers. If signed into law, Senate Bill 456 would permit a labor pool to compensate day labors, paying them in cash, using a commonly accepted negotiable instrument that is payable in cash, on demand at a financial institution, and without discount, using a payroll debit card, or by electronic fund transfer to a financial institution designated by the day laborer.
The Nevada State Contractors Board has an Overview of Contractor License Requirements for Nevada that addresses commonly asked questions about the general requirements for applying for a contractors license and the corresponding answers.
The Arizona Registrar of Contractors (ROC) warns contractors that even if they have received a notice from the Department of Revenue stating: "If you are a contractor whose only business is to enter into contracts with the owner of real property for the maintenance, repair, replacement or alteration of existing property, beginning January 1, 2015, you do not need to have a transaction privilege tax (TPT) license," Arizona Revised Statutes § 32-1122(B)(1)(h) requires all contractor license applicants and licensees to provide the ROC with a TPT license number to obtain or renew a contractor license. The ROC confirmed that it has asked the legislature to make these laws more consistent by removing this TPT requirement. However, it cautions that, until this change is made, contractors need to maintain their Arizona TPT license.
Recently, the California Contractors State License Board posted a link to the 2015 edition of the California Contractors License Law & Reference Book. This is an incredibly helpful resource if you are currently a contractor, subcontractor or materials supplier in California or if you may become one in the near future.
In a very long opinion (111 pages), making rulings on motions for summary judgment and the controverted exclusion of expert witness testimony, the U.S. District Court for the Eastern District of Washington held that the manure management practices of a number of large dairy operations in Washington State generated dangerous amounts of what the District Court determined to be solid waste regulated under the Resource Conservation and Recovery Act ("RCRA"). In doing so, it concluded that the defendants in a RCRA Citizen Suit have violated RCRA's open dumping and substantial and imminent endangerment prohibitions. The case is Community Association for the Restoration of the Environment, Inc., et al., v. Cow Palace, LLC, et al., and this decision was issued on January 14, 2015. This ruling makes the point that even innocuous, non-hazardous waste management practices can have adverse consequences if the waste is not properly managed and monitored for compliance.
Last year, the U.S. Court of Appeals for the Sixth Circuit decided the case of Hobart Corporation, et al., v. Waste Management of Ohio, Inc., et al., 758 F. 3d 757 (2014), holding that the statute of limitation applicable for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) cost reimbursement actions is 3 years from the effective date of an administrative settlement with EPA. Yesterday, the Supreme Court denied Hobart's petition for certiorari.
Yesterday, I posted my client alert Reversing Course, EPA Tightens Its RCRA Hazardous Waste Recycling Rules. This Alert discusses the EPA's harder line on its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling following years of relative easing into these rules. A recently issued regulation makes recycling almost as heavily regulated as other hazardous waste management activities under the RCRA.
Today, the Nevada State Contractors Board (NSCB) issued an Industry Bulletin confirming that, in recent months, it "has been seeing an increase in the number of out-of-state solar manufacturers entering into contracts with licensed Nevada contractors to perform solar installation services for Nevada residents." It noted that many of these out-of-state manufacturers do not possess a Nevada contractor's license and the Nevada contractors performing installation services for such businesses are being disciplined by NSCB for aiding and abetting an unlicensed contractor.
Yesterday, Pillsbury attorneys Chris Wall, Steve Becker, Nancy Fischer, Aaron Hutman and Stephanie Rohrer published their advisory titled Treasury and Commerce Departments Issue Regulations to Implement New Cuba Policy. The Advisory discusses the Obama administration's implementation of its promised changes to U.S. sanctions and export controls for Cuba, changes effective January 16, 2015. Although most trade and transactions still are prohibited, the revisions to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR) ease licensing requirements in a number of areas, including exports to and imports from Cuba of certain types of goods and services, telecommunications and Internet services, travel and travel services, financial services, remittances, and treatment of Cuban nationals in third countries.
On January 14, 2015, the U.S. Court of Appeals for the Fifth Circuit decided an important Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607(a)(3)("CERCLA"), liability case: Vine Street LLC v. Borg Warner Corporation. The Court of Appeals held that as a result of a 2009 decision of the U.S. Supreme Court, Burlington Northern & Sante Fe Railway Co., et al., v. United States, 556 U. S. 599 (2009), Borg Warner was not liable to Vine Street for CERCLA cleanup costs under a theory of "arranger liability" or for cleanup costs under the Texas Solid Waste Disposal Act ("TSWDA").
On November 5, 2014, a panel of the U.S. Court of Appeals for the Fifth Circuit refused to reconsider its June 2014 decision affirming the District Court's decision that B.P. Exploration & Production, Incorporated and Anadarko Petroleum Corporation can be held liable for violating the Clean Water Act (CWA) in connection with the massive Deepwater Horizon oil spill in the Gulf of Mexico. BP and Anadarko owned and operated the well, but they argued that the floating rig, owned and operated by Transocean (which has already settled its liability) and not the well was the source of the oil spilling into the Gulf of Mexico. In the earlier ruling, the panel held that under the plain terms of the CWA, the defendants were liable because "there was no dispute of material fact that controlled confinement of oil was lost in the well", and that the well "was a point from which oil or a hazardous substance was discharged". BP and Anadarko argued that it was the Deepwater Horizon rig and its appurtenances constituted the point at which control of the oil was in fact, lost.
On January 9, 2015, Fifth Circuit issued another ruling, rejecting the petitioners' request for a rehearing en banc. The vote rejecting the petition was surprisingly close, 7 to 6, with two abstentions. In a vigorous dissent, Judge Clements stated that the denial of the petition "ensures that our precedent concerning liability for oil spills under the Clean Water Act remains unclear". The panel's "controlled confinement" test does not follow from the text of the Clean Water Act, and, moreover, Fifth Circuit precedent in ambiguous civil penalty cases should be resolved in favor of the defendant, and this precedent was not followed here.
In its Public Notice of Nevada State Contractors Board (NSCB) Meeting scheduled for January 22, 2015 at 8:30 a.m. by videoconference at its Henderson and Reno NSCB offices, the NSCB's agenda indicates that the meeting may include a legislative discussion and possible action on several pre-filed senate and house bills.
On January 7, 2015, the U.S. District Court for the Central District of California held that California's ban on the sale in California of foie gras--a delicacy made from fattened and force-fed duck liver--was preempted by federal law, namely the Poultry Products Inspection Act (PPIA), 21 U.S.C. §§ 451-470. The case is Associations Des Eleveurs De Canards et D'Oies Du Quebec, et al., v. Kamala Harris, Attorney General of California. This is an example of the preemptive effect of federal legislation, which will often trump conflicting state law, especially in business matters.
The plaintiffs, a group of Canadian farmers, alleged that this ban has caused them to lose millions of dollars in sales in California, and the court held that they had standing to bring this lawsuit. The District Court then reviewed the California statute (enacted in 2012) and the provisions of the PPIA, and determined that the California law conflicts with and is preempted by the federal law, which regulates the distribution and sale of poultry products in interstate commerce.
Some of the issues in this case have already been reviewed by the Ninth Circuit, which held in 2013 that the California Attorney General was not entitled to Eleventh Amendment immunity (see 729 F. 3d 937), and it is likely that another appeal will be made to the Ninth Circuit. The Ninth Circuit has recently upheld several state laws against such challenges.
On December 29, 2014, the U.S. District Court for the Eastern District of North Carolina held that the plaintiffs in a Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA) citizens-suit against the owners and operator of a swine farm had the right to have the case tried before a jury. The case is North Carolina Environmental Justice Network, et al , v. Taylor, et. al. It is alleged that the defendants illegally dumped swine waste into the waters and onto the lands surrounding the swine farm. The defendants challenged the demand for a jury trial, and both sides argued that a 1987 Supreme Court decision, Tull v. U.S., 481 U. S. 412 (1987), supported their positions. After reviewing the Tull case and other precedents, the District Court held that the Tull decision, which discussed the right to a jury trial when the federal government was seeking civil penalties, was a Seventh Amendment right available to either side in a citizens-suit case.
On January 9, 2015, the U.S. District Court for the District of Columbia approved a proposed consent decree that had been negotiated by EPA and the California Air Resources Board (CARB) that resolved the government's claims that Hyundai Motor Company, Hyundai Motor America, Kia Motors Corporation, Kia Motors America, and Hyundai America Technical Center, Inc. violated the Clean Air Act and the California Health & Safety Code by falsifying fuel economy and greenhouse gas emissions claims that affected more than 1 million vehicles sold in the 2012 and 2013 model years.
It was alleged in the consent decree that there was a discrepancy in the information provided by the defendants in connection with the application for "Certificates of Conformity" and the actual specifications of the vehicles in that the vehicles provided lower fuel economy and emitted higher emissions than was stated in the applications. 126,000 vehicles were sold in California, and the $100,000,000 civil penalty--the largest yet recovered--was split between the U.S. Government ($93,700,000) and the State of California ($6,300,000). In addition, Hyundai agreed to forfeit 4.75 million greenhouse gas credits.
The proposed settlement was published in the Federal Register, and several comments were received. Some of the commenters requested that Hyundai also provide $25 million of Supplemental Environment Projects in some states, but the United States rejected this request, arguing that to do so would unravel the settlement that had been negotiated. The decision is reported as United States of America, et al. v. Hyundai Motor Company, et al.