TX Court Rules That Duty to Defend Suit Seeking Damages Extends to Superfund Cleanup Proceedings Conducted by EPA, Claims Covered by CGL Policies

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Responding to an inquiry from the U.S. Court of Appeals for the Fifth Circuit, the Texas Supreme Court ruled Friday, in a 5 to 4 decision, that the "coercive nature" of the administrative proceedings employed by the Environmental Protection Agency (EPA) under Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA) cleanup and cost recovery provisions amount to a "suit", and a potentially responsible party's (PRP) receipt of a CERCLA letter from EPA, inviting the recipient to negotiate with EPA "is effectively a demand". Moreover, with respect to judicial review, "as a practical matter, courts afford PRPs no hope of relief, and consequently they have no choice but to comply with EPA's directives". The case is McGinnes Industrial Maintenance Corporation v. The Phoenix Insurance Company and The Travelers Indemnity Company. Chief Justice Hecht wrote the majority opinion.

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Fall Protection: "I survived."

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The Washington State Department of Labor & Industries (L&I) recently posted on its L&I Blog a blog titled "I survived," a cautionary tale about how fall protection saved a construction work from a 30' plunge. In early May, Apollo, Inc. employee Tanner Kane was using a bar to pop forms off the top of a retaining wall. Suddenly, he was catapulted over a 30' retaining wall. According to his work partner, Carrie Johnson, "It was crazy; one minute he was there, and in a blink of an eye he was gone." Because Tanner was using a fall protection system and was tied off to the horizontal lifeline installed for the job, he survived the potential 30' fall with no significant injuries. Tanner's coworkers activated the rescue plan and Tanner was able to self-rescue with help from Johnson.

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WA: July 1, Identity Verification Required to Purchase Electrical Work Permit

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Beginning July 1, 2015, in Washington, to protect against unlicensed electrical contractors fraudulently obtaining electrical work permits, electrical contractors purchasing electrical permits using the paper application form will be required to print their name and mark their affiliation with the company on the permit application. The customer service representative will then check the license information to confirm that the person purchasing the permit is authorized under Washington Administrative Code section 296-46B-901(3) to do so. If the person identified on the permit application is someone other than the assigned administrator, master electrician, owner, principal of the corporation, or a documented authorized signer, the customer service representative will not sell the permit.

Uber Hits a Speed Bump in California: Labor Commissioner Rules Driver is an Employee

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury Paula Weber and Erica Turcios published their client alert titled Uber Hits a Speed Bump in California: Labor Commissioner Rules Driver is an Employee. This Alert discusses a recent decision that may signal a more stringent application of the test for determining independent contractor status. The California Labor Commissioner ruled in Uber Techs., Inc. v. Berwick, Labor Comm'n, Case No. 11-46739 EK (June 3, 2015), Super. Ct. Case No. CGC-15-546378, that an Uber driver is an employee of Uber, not an independent contractor.

DOL Invites Comments on Requirement That Bidders Disclose Employment Law Violations

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorney Julia Judish published her client advisory titled DOL Invites Comments on Requirement That Bidders Disclose Employment Law Violations. The Alert discusses President Obama's Executive Order 13673, called the Fair Pay and Safe Workplaces Order; the Order uses the prospect of gaining or losing an edge in winning government contracts to provide a powerful incentive for employers to comply with a broad range of employment laws. On May 28, 2015, the Department of Labor (DOL) published a Proposed Guidance on implementation of the Order and invited the public to submit comments by July 27, 2015. Because aspects of the proposed guidance create compliance burdens for government contractors and could unfairly place some government contractors at a disadvantage in the procurement process, the contractor community would be prudent to submit comments that may lead to changes in the final guidance.

9th Cir. Approves EPA's Retroactive Amendment of Earlier Approval of California SIP New Source Review Rules

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By Pillsbury Winthrop Shaw Pittman

In the case of Association of Irritated Residents v. EPA, decided June 23, 2015, the Court of Appeals for the Ninth Circuit denied a petition for review filed after EPA acknowledged that it had mistakenly approved certain New Source Review (NSR) rules affecting ozone emissions in California's Central Valley (which includes the San Joaquin Valley) subject to California's State Implementation Plan (SIP), and then corrected this error.

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Supreme Court Issues Important Takings Decision, 10 Years After Kelo Case Decided

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An important Fifth Amendment Takings Clause case was decided today. The U.S. Supreme Court, by reversing the Ninth Circuit, has terminated the decades-old litigation over the Department of Agriculture's administration of the California raisin "marketing order." The case is Horne, et al. v. Department of Agriculture.

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Supreme Court Denies Cert in Aransas Project v. Shaw

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The U.S. Supreme Court will not hear an appeal of the Fifth Circuit's decision which reversed the lower court's ruling. The Fifth Circuit found that the State of Texas had violated the Endangered Species Act in its administration of the state water permitting program which allegedly denied adequate amounts of fresh water at the Aransas, Texas Whooping Crane preserve. The case is Aransas Project v. Shaw.

Harris County Day at the Texas Supreme Court

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The Texas Supreme Court issued two significant rulings on June 12, 2015. In the case of Dacus, et al v. Annise Parker, et al., the Court reversed the judgment of the Court of Appeals of the Fourteenth Circuit, and held that the 2010 proposed amendment to the Houston City Charter, authorizing the imposition of maintenance fees directly on City residents to finance city street and drainage improvements, did not meet the common law standard "preserving the integrity of the ballot." The information on the ballot did not inform the voters that they would be subject to these fees; it simply identified the proposed amendment without describing how the funds would be raised. Since 1884, the Court has required that such propositions be submitted with such definitions and certainly that the voters are not misled. Today's ruling should provide more clarity and direction to the lower courts. The case has been returned to the district court.

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9th Cir. Affirms Dismissal of Challenges to Oil Spill Response Plans for Offshore Drilling Off the Coast of Alaska

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In a decision released on June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit, by a 2 to 1 decision, affirmed the lower court's grant of summary judgments in favor of the Department of the Interior, the Bureau of Safety and Environmental Enforcement (the Bureau) and two Shell Oil entities, Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. with respect to the Bureau's approval of Shell's oil spill response plans. These companies were awarded leases to explore for oil in the Beaufort and Chukchi Seas off Alaska's Arctic coast, and the court noted Shell's plans have been "waylaid by a variety of legal, logistical, and environmental problems, including multiple lawsuits, the wreck of one of its drilling rigs, and the temporary suspension of drilling activities in the Arctic after the Deepwater Horizon spill". At least eight separate challenges to the Shell leases have been heard by the Ninth Circuit to date. Several environmental organizations challenged the decision of the government to approve two of Shell's oil spill response plans, arguing that the approval was arbitrary and capricious in violation of the Administrative Procedure Act.

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California Department of Insurance and Other Agencies Continue Efforts to Crack Down on "Thriving Underground Economy"

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In late May, the California Department of Insurance (CDI) issued a press release announcing that it was involved in a multi-agency team that conducted a statewide outreach and enforcement effort targeting what it describes as a "thriving underground economy." The enforcements teams included the Department of Industrial Relations, Contractors State License Board, CDI, Franchise Tax Board and Employment Development Department and several district attorney investigators.

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8th Circ. Upholds Enforcement of Section 327.13 (Explosives, firearms, other weapons and fireworks)

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In the case of GeorgiaCarry.Org, Inc., et al., v. U.S. Army Corps of Engineers, decided June 9, 2015, the Eleventh Circuit Court of Appeals affirmed the decision of the lower court to deny a request for a preliminary injunction against the enforcement of the Corps' regulation that prohibits loaded firearms and ammunition form federal property managed by the Corps. The rule is located at 36 C.F.R. ยง 327.13.

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California Amended Heat Illness Regulations Effective May 1

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UPDATE: Cal/OSHA issued a high heat advisory today (June 16) advising employers to protect employees against the risks associated with heat illness. Temperatures are expected to be 15 to 25 degrees above normal in Southern California through Monday.

California's Heat Illness Prevention Regulation was amended effective May 1, 2015. This regulation applies to all "outdoor places of employment" and to five enumerated industries: (1) agriculture, (2) construction, (3) landscaping, (4) oil and gas extraction, and (5) transportation or delivery of agricultural products, construction materials or other heavy materials (e.g. furniture, lumber, freight, cargo, cabinets, industrial or commercial materials), except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading. On May 14, 2015, the Department of Industrial Relations (DIR) and Cal/OSHA published a Guidance for Employers and Employees on the New Requirements (May 14, 2015), which is designed to provide guidance to employers and employees on how to implement the new requirements. On the same day, the DIR published a Heat Illness Prevention Enforcement Q&A . The new regulation requires, among other things, pre-shift meetings to review the high heat procedures, encourage employees to drink plenty of water and remind employees of their right to take a cool-down rest when necessary, the implementation of effective emergency response procedures, and the establishment, implementation and maintenance of a Heat Illness Prevention Plan.

Additional Source: Department of Industrial Relations, Heat Illness Prevention (English and Spanish)

8th Cir. Upholds Revocation of Shoreline Use Permit

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In the case if McClung v. Paul, decided June 8, 2015, the Eighth Circuit Court of Appeals affirmed the decision of the lower court that the District Corps Commander's revocation of a federal permit to use the boat dock and concrete steps located on federal property adjacent to the McClungs' residence in the Greers Ferry Lake, Arkansas area, was not arbitrary and capricious.

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Texas State Appeals Court Reverses Grant of Summary Judgment to Energy Companies Sued for Alleged Nuisance and Trespass Claims

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On June 1, 2015, in a case about the interplay between the right of individual property owners to seek redress for the diminution in value of their properties caused by light, noise, and airborne chemical particulates originating from the operation of adjacent regulated energy production facilities and the right of the government to regulate emissions from those facilities, the Seventh Court of Appeals sitting in Amarillo issued a ruling reversing the grant of summary judgment to five energy production companies whose operations are located near DISH, Texas, and remanding the matter for further proceedings. The case is Sciscoe, et. al. v. Enbridge Gathering (North Texas), L.P., et. al.

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