Seattle ~ July 1, 2014 ~ New Construction and Demolition Waste Requirements Will Be Enforced

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The Seattle Public Utilities (SPU) and Department of Planning and Development (DPD) are reportedly working together to increase recycling and salvage rates in the hopes of achieving Seattle's landfill diversion goals -- to divert 70%of construction and demolition waste from landfills by 2020. seattle.jpgBecause certain materials are easy to either salvage or recycle, Seattle is banning asphalt paving, brick, concrete, metal, cardboard, and new gypsum scrap from being sent to a landfill for disposal within the City of Seattle. SPU has set up a facility certification program identifying qualified receiving and recycling facilities for recovering targeted construction materials for recycling and subsequent use.

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Greater Sacramento Area Economic Council Wants YOU

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The Sacramento Business Journal recently reported that Up to 40 CEOs back new business recruitment effort for the capital region. Sacramento.jpgThe recently formed Greater Sacramento Area Economic Council reportedly "will be modeled after an economic development group in Phoenix that has made several trips to Sacramento to talk to various stakeholder groups." The new council is expected to attend national and international business recruitment events to sell Sacramento along and to utilize other methods of actively recruiting Sacramento business.

What would it take for you to join us here in the capital region?

Additional Source: The Sacramento Bee, CEO group plans Sacramento economic development push (Jun. 24, 2014)

Photo: Bev Sykes, State Capitol, Sacramento (Dec. 11, 2003) - Creative Commons

English Law: When Contractual Limitations on Damages Can Backfire

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Raymond Sweigart published his advisory English Law: When Contractual Limitations on Damages Can Backfire. The Advisory discusses AB v. CD [2014] EWCA Civ 229, in which the Court of Appeal for England and Wales addressed an issue with surprisingly little precedent. It held that a claimant seeking an injunction to prevent an alleged wrongful termination of a contract was entitled to argue that damages could not be an adequate remedy because recoverable damages were limited or excluded under the contract.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Raymond Sweigart, the author of this blog.

VA Stormwater Management Regulations Post-July 1, 2014

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On May 24, 2011, the Virginia Soil and Water Conservation Board adopted final stormwater management regulations (Virginia Stormwater Management Program (VSMP) Permit Regulation). The date for statewide local government implementation of stormwater management programs is July 1, 2014.

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Proposed Implementing Legislation for the Mexican Energy Reform Will Create an Open, Competitive Electrical Power Industry

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Eric Save, Michael Hindus and John McNeece published their advisory Proposed Implementing Legislation for the Mexican Energy Reform Will Create an Open, Competitive Electrical Power Industry. The Advisory notes that the Mexican Congress is debating a historic package of legislation to restructure the nation's electrical power sector. This legislation will create a more open and competitive power industry in Mexico, giving the private sector unprecedented opportunities to (i) generate power in Mexico for sale in a competitive wholesale electricity market, (ii) offer electricity service to large-scale consumers in Mexico, and (iii) enter into joint ventures, public-private partnerships and service contracts with the state or the state-owned utility for the financing, construction and operation of infrastructure needed for the transmission, distribution and generation of electrical power.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Eric Save, Michael Hindus or John McNeece, the authors of this blog.

Heirs of John D. Rockefeller Avoid CERCLA Liability

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By Pillsbury Winthrop Shaw Pittman

In a decision released on June 25, 2014, the US Court of Appeals for the Second Circuit held that ASARCO LLC could not maintain CERCLA cost recovery actions against the trustees of residuary trusts created by the will of John D. Rockefeller, Sr. ASARCO, as part of its emergence from Chapter 11 bankruptcy, paid the US, the State of Washington, and the Port of Everett, Washington $50.2 million to settle pending CERCLA claims at two Superfund sites in Washington State. ASARCO then filed its contribution action against the trustees in federal court on the theory that the remediation costs were "fairly attributable" to the actions of its predecessors at these sites, corporations controlled by Rockefeller that were engaged in mining and smeltering operations nearly 100 years ago. The Second Circuit, affirming the lower court, rejected ASARCO's claims on the basis that they were barred by the relevant CERCLA statute of limitations, and that ASARCO was not a subrogee entitled to take advantage of another, more generous CERCLA statute of limitation. The case is ASARCO LLC v. Goodwin, et. al.

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EPA Proposes to Eliminate Dual Standard for "All Appropriate Inquires" under CERCLA

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As discussed more fully in my advisory titled EPA Proposes to Eliminate Dual Standard for "All Appropriate Inquires" under CERCLA, on December 30, 2013, EPA published a final rule authorizing use of ASTM E1527-13 to comply with the Appropriate Inquiries ("AAI") requirements for the innocent landowner, bona fide prospective purchaser, and continuous property owner defenses to CERCLA liability. 78 Fed. Reg. 79319. This final rule did not remove reference to the 2005 standard. Thus, although EPA made clear that reliance on the updated ASTM Phase I standard would satisfy a purchaser's AAI obligations under CERCLA, EPA left significant uncertainty as to whether a Phase I without agency file review was sufficient to meet AAI requirements because EPA did not remove the reference to the 2005 Phase I standard. On June 17, 2014, EPA proposed to amend the AAI Rule in 40 CFR 312 to remove the reference to ASTM E 1527-05. According to EPA's proposal, the "proposed action removes the reference to a standard that ASTM International no longer recognizes as current and that it no longer represents as reflecting its current consensus-based standard." 79 Fed. Reg. 34480.

Ocean Avenue LLC v. County of Los Angeles Affirmed; AB 2372 Passes Assembly

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Matthew Burke and Craig Becker published their advisory titled Ocean Avenue LLC v. County of Los Angeles Affirmed; AB 2372 Passes Assembly. The Advisory discusses the California Court of Appeal for the Second Appellate District's June 3, 2014 order affirming the Superior Court ruling in Ocean Avenue LLC v. County of Los Angeles, holding that even though 100 percent of an entity was sold, a reassessable change in ownership of the entity's real property did not occur because no one person obtained more than 50 percent of the entity. It further discusses how Assembly Bill 2372 would change that result by requiring reassessment of an entity's realty if 90 percent or more of its ownership interests were sold within a three year period, even if no one owner acquired more than 50 percent.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matthew Burke or Craig Becker, the authors of this blog.

Forbes Busts Monster Myth About Marketing To Women

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For most industries, attracting both male and female consumers is a must, but successfully engaging both genders is not always easy. It is becoming more difficult given that both genders' roles continue to change and their views on gender roles are ever evolving. In Monster Myth: Marketing To Women Alienates Men, Forbes contributor Ayesha Mathews-Wadhwa contends that the "monster myth: marketing to women will alienate men" is a "misconception [] entrenched in the modern marketing world but is especially strong in ads for liquor and cars. Slick, dark shots open on a woman gazing seductively at the camera while Jason Bourne-esque music swells." She, however, cautions that a "'shrink-it-and-pink-it' approach" to marketing to women hasn't work and that "tone-deaf brands equal a tuned out audience." She further cautions that it may be even more difficult with the new millennial generation, citing to the New York Times bestseller, The Athena Doctrine, which reportedly confirms that "millennials have a fundamentally stronger view of femininity and the role of women in society."

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DC Circuit Clarifies Standard of Review When Agencies Argue "Good Cause" for Bypassing APA Notice and Comment Requirement

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By Amy L. Pierce

In an Federal Communications Commission (CMC) matter, Sorenson Communications, Inc. v. FCC, the DC Circuit vacated an interim rule promulgated by the FCC without going through notice and comment. The agency argued that it had "good cause" to dispense with the Administrative Procedure Act (APA) in this instance. The court disagreed, and articulated the court's standard of review in assessing such claims. The inquiry is to be "meticulous and demanding", and the exception in the APA is to be "narrowly construed". The court's review of the claimed exception is de novo, and here the agency's argument that it was reacting to a fiscal emergency was spurious, especially as there was no support in the record to countenance such a departure from the normal APA procedures. The court recognized that it had allowed a few exceptions, but only where a real emergency involving a threat to life or property demanded quick action.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Additional Source: Important APA Issue Awaits Supreme Court's Review

Texas Supreme Court: Economic Loss Rule Bars GC's Claim Against Architect

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In LAN/STV, a Joint Venture of Lockwood, Andrews & Newman, Inc. v. Martin K. Eby Construction Company, Inc., the Texas Supreme Court considered "whether the rule permits a general contractor to recover the increased costs of performing its construction contract with the owner in a tort action against the project architect for negligent misrepresentations -- errors -- in the plans and specifications." Under the circumstances presented, the Court concluded that "the economic loss rule does not allow recovery" for the general contractor's claim against LAN/STV for negligent misrepresentation, reversing the judgment of the Court of Appeals and rendering judgment for the architect; the "economic loss rule," a common law doctrine, restricts recovery of purely economic damages unaccompanied by injury to the plaintiff or its property.

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Employees and Independent Contractors and Day Laborers ... Oh My!

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UPDATES: Ayala v. Antelope Valley Newspapers Inc., ___ Cal. ___ (Jul. 1, 2014)--California Supreme Court clarifies the test for independent contractor status; Ruiz v. Affinity Logistics Corp., 2014 BL 166620, No. 12-56589 (9th Cir. Jun. 16, 2014)--Ninth Circuit found "overwhelming evidence" that the defendant controlled details of the delivery drivers' work and, accordingly, the drivers were employees not independent contractors under California law, citing S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 769 P.2d 399 (Cal. 1989).

Wizard of Oz.jpgThe California Contractors State License Board (CSLB) recently issued an Industry Bulletin reminding contractors of the importance of properly classifying workers as employees or independent contractors to avoid being subject to penalties and fines. Helpful information can also be found on the California Department of Industrial Relations' website, including, for example, a publication on independent contractors versus employees.

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Important APA Issue Awaits Supreme Court's Review

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By Pillsbury Winthrop Shaw Pittman

The U.S. Supreme Court has agreed to review two decisions of the DC Circuit, which held that "when an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has, in effect amended its rule, something it may not accomplish [under the Administrative Procedure Act without notice and comment". The cases to be reviewed are Perez, et al. v. Mortgage Bankers Association, et al., and Nickols, et al. v. Mortgage Bankers Association, and they involve the Department of Labor's (DOL) application of the Fair Labor Standards Act (FLSA) to mortgage loan officers: Are they exempt from the FLSA's overtime wage requirements, or are they not?

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Would You Consider Paving the Way for Your Workers to Obtain a College Degree?

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Recently, Starbucks has been in the news for "giving its baristas a shot at an online college degree." Starbucks has reportedly team upped Arizona State University to offer certain of its employees access to an online undergraduate degree available at a steep discount (the "Starbucks College Achievement Plan"). Starbucks and ASU News reported that "Through this innovative collaboration, partners based in the United States working an average of 20 hours per week at any company-operated store (including Teavana®, La Boulange®, Evolution Fresh™ and Seattle's Best Coffee® stores) may choose from more than 40 undergraduate degree programs taught by ASU's award-winning faculty, such as electrical engineering, education, business and retail management."

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University of Texas Arlington Plans to Offer Master of Construction Management Degree

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Beginning in the fall of 2014, the University of Texas at Arlington plans to offer a new Master of Construction Management (MCM) degree with an option to take courses online to help meet industry demand in Texas, especially in the thriving North Texas region. It will focus on management of construction projects in three main categories: (1) heavy, which includes highways, pipelines and infrastructure; (2) residential and commercial construction; and (3) general construction. Southern Association of Colleges and Schools' approval for the program is required and it is expected by August 2014 . Once its approval is obtained, students may apply and be admitted to the program.

Additional Sources: Loud Buzzing Coming From Downtown Austin