Note Cal/OSHAB's Amended Personal Protective Devices and Safeguards Regulations

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By Amy L. Pierce

Effective April 1, 2015, employers are required to comply with the California Department of Industrial Relations, Occupational Safety & Health Standards Board's amended Personal Protective Devices and Safeguards regulations. Among other amendments, Subdivision (d) of Sections 1514 (Construction Safety Orders) and 3380 (General Industry Safety Orders) of Title 8, Division 1, Chapter 4 of the California Code of Regulations have been amended to state: "The employer shall assure that all required safety devices and safeguards, whether employer or employee provided, including personal protective equipment for the eyes, face, head, hand, foot, and extremities (limbs), protective clothing, respiratory protection, protective shields and barriers comply with the applicable Title 8 standards and are maintained in a safe, sanitary condition."

Other Resources: Cal/OSHAB, Personal Protective Devices and Safeguards, Rulemaking Documents

Ninth Circuit Sends District Court Back To The Drawing Board On Allocation Of Cleanup Costs

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On April 2, 2015, the Ninth Circuit Court of Appeals decided a complex Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution cost recovery case in AmeriPride Services Inc. v. Texas Eastern Overseas Inc. (TEO), a dissolved Delaware corporation. The Ninth Circuit vacated this District Court's rulings on several grounds.

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Wisconsin District Court Issues Significant CERCLA Ruling

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A significant CERCLA Opinion and Order was issued on March 18, 2015 by the U.S. District Court for the Western District of Wisconsin in Northern States Power Company v. The City of Ashland, Wisconsin, et al. Northern States is cleaning up a CERCLA site located adjacent to Lake Superior in Ashland, Wisconsin pursuant to agreements it had entered into with EPA in 2003 and 2012, and it has filed cost recovery lawsuits against the defendants, including Ashland County. Northern States alleges that Ashland County was a former owner of the facility many years ago, and that it was vested with sufficient ownership and control as the result of a tax delinquency. Contemporary newspaper accounts confirmed, for the Court, that the County appears to have played a direct role in the demolition of onsite facilities and the resulting historic releases of hazardous substances, and the County's request for summary judgment was denied.

Reminder: California Contractors Are Required To Register With DIR Before Bidding On Public Works Projects

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The California Contractors State License Board (CSLB) recently issued a press release reminding California contractors that, beginning March 1, 2015, all contractors are required to register with the Department of Industrial Relations (DIR) in order to bid on public works projects and, on April 1, 2015, all contractors will be required to be registered with DIR to be awarded a public works contract, even if the project did not go out to bid. This new requirement became effective on June 20, 2014 as a result of Senate Bill 854. DIR maintains a listing of registered contractors and subcontractors on its website to assist the various awarding bodies to confirm that bidders are properly registered, and for contractors who need to confirm that their bid team members are registered.

The CSLB also reminded contractors that they are also required to submit certified payroll records (CPRs) to the Labor Commissioner's office for all new projects awarded on or after April 1, 2015, and for other projects if the projects are still on-going after January 1, 2016. The only exception will be projects awarded by Caltrans, the City of Los Angeles, Los Angeles Unified School District, Sacramento County, or projects that utilize a project labor agreement.

Additional Source: CA: Public Works Contractors Online Application System

State of Wyoming Challenges DOI's Federal Hydraulic Fracturing Rules

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Last week, the State of Wyoming filed a Petition for Review of Final Agency Action in the Wyoming Federal District Court challenging the new federal hydraulic fracturing rules, 43 C.F.R. Part 3160. The case is State of Wyoming v. United States Department of the Interior, et al., No. 15cv43-S. Wyoming essentially argues that the Department of Interior's new rules exceed the Department of Interior's authority under the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-84 and the Mineral Leasing Act, 30 U.S.C. §§ 181-287; that exclusive federal authority is vested in the Environmental Protection Agency's Underground Injection Control program established under the Safe Drinking Water Act, 42 U.S.C. § 300h-1; and that the rules unlawfully interfere with the State of Wyoming's hydraulic fracturing regulations.

Petitions for Certiorari Filed With Supreme Court in Two Environmental Cases

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Petitions for certiorari have been filed with the Supreme Court of the United States regarding two recent rulings of the U.S. Court of Appeals for the Fifth Circuit. In both Aransas Project v. Shaw and In re: Deepwater Horizon, petitions for en banc review were denied, but a significant number of dissents have encouraged the petitioners to seek further review in the Supreme Court.

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Seattle's Minimum Wage Ordinance Effective April 1

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Seattle's new minimum wage legislation passed by the Seattle City Council and signed into law by Mayor Murray on June 3, 2014 provides for an increase in the minimum wage in the City of Seattle to $15/hr., phased in over time, beginning April 1, 2015. The minimum wage ordinance has a different schedule for increasing the employees' pay based upon the employers' number of employees in the U.S. and whether the employer pays toward its employees' medical benefits plan.

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Franchise Tax Board California Competes Tax Credit Review Procedures

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By Pillsbury Winthrop Shaw Pittman

The Franchise Tax Board ("FTB") will begin reviewing California Competes Tax Credit Agreements of all recipient of the credit (except for small businesses) beginning this summer. If FTB determines that credit recipients have failed to achieve the employment and investment milestones set forth in their credit agreements, FTB may recommend that the awarded credits be recaptured. During the course of FTB's review, it may request from credit recipients any information relevant to the credit agreements, and will have access to all of the information submitted in the course of the recipients' application for a credit award. Credit recipients and future credit applicants should be aware that FTB is not prohibited from using any of this information for purposes of an unrelated income or franchise tax audit, and that contesting an FTB recommendation to recapture the credit may present unique procedural challenges.

Additional Source: Franchise Tax Board California Competes Tax Credit Review Procedures, co-authored by Michael Cataldo and Paul Casas.

NV Reminds Contractors to Include License Number on All Advertisements

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The Nevada State Contractors Board (NSCB) recently issued an Industry Bulletin reminding all licensed Nevada contractors of their responsibility to include specific information when advertising services. Subdivision (3) of Section 624.720 of the Nevada Revised Statutes requires that "[a]ll advertising by a licensed contractor must include the name of the contractor's company and the number of the contractor's license." In its Industry Bulletin, NSCB confirmed that it frequently monitors a number of print and online media, including Angie's List, Craigslist, online bulletins, local and statewide publications, etc. and that it has begun to see an increase in licensed contractors failing to include their license number in their advertisements.

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USGS's Increase of Texas's Earthquake Risk Level: Commercial Real Estate and Insurance Implications

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys James Lloyd, Vince Morgan, Adam Weaver and Tamara Bruno published their client alert titled USGS's Increase of Texas's Earthquake Risk Level: Commercial Real Estate and Insurance Implications. The Alert discusses the increase in seismic activity in the Fort Worth Basin and the likelihood that this increase will lead to a corresponding rise in the official earthquake risk level for the Fort Worth Basin when the United States Geological Survey (USGS) releases an updated earthquake hazard map in the coming months. This map and the USGS's estimates of seismic risk play a crucial role in determining insurance costs, building codes and lenders' insurance requirements.

New Court of Appeals "Arranger Liability" Superfund Ruling

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The U.S. Court of Appeals are encountering and deciding CERCLA (or Superfund) "Arranger Liability" cases in the wake of the Supreme Court's 2009 decision in the case of Burlington Northern and Santa Fe Railway Co. v. United States, 556 U. S. 559 (2009). Earlier this year, the Fifth Circuit held, in the case of Vine Street LLC v. Borg Warner Corp., that CERCLA's "Arranger Liability" for Superfund cleanup responsibility did not apply to most straightforward business transactions in which an intent to dispose of hazardous waste or hazardous substances in the guise of a business transaction could not be established. On March 20, 2015,a divided panel of the Fourth Circuit reached a similar conclusion in the case of Consolidation Coal Company v. Georgia Power Company, et al. The Court of Appeals affirmed the lower court's ruling that granted summary judgment to Georgia Power Company in a cost recovery case involving the ongoing cleanup of the Ward Transformer Site, located in Raleigh, North Carolina.

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Removal of Arbitrator for Impartiality Doubts Under English Arb Act

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Ray Sweigart published his client alert titled Removal of Arbitrator for Impartiality Doubts under English Arb Act. The Alert discusses the English Court's removal of an arbitrator under section 24 of the Arbitration Act 1996 in Sierra Fishing Company and others v Hasan Said Farran and others [2015] EWHC 140 (Comm).

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EAB Issues Significant Decision re Statute of Limitations and EPA Policy Statements

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On March 13, 2015, the EPA's Environmental Appeals Board (EAB) issued an important ruling in a Toxic Substances Control Act (TSCA) enforcement matter. The case is In re: Elementis Chromium, Inc., TSCA Appeal 13-03.

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GSA May Abolish the Price Reduction Clause

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorneys John Jensen and Claire Cavaliero published their client alert titled GSA May Abolish the Price Reduction Clause. The Alert discusses the U.S. General Services Administration (GSA) recently issued proposed rule that could abolish the long-standing price reduction clause (PRC) from the GSA Schedule program. GSA is proposing to eliminate the clause and to use, instead, the submission of "transactional data reporting" to help achieve its goal of fair and reasonable pricing on all orders. The rule would require contractors to report transactional data for orders placed against GSA Federal Supply Schedule (FSS) and other GSA contracts. The proposed rule is designed to improve GSA's ability to conduct meaningful price analysis and more efficiently and effectively validate fair and reasonable pricing. It is also intended to reduce the burden on contractors imposed by the current GSA PRC.

Failure To Present Expert Testimony Resulted In Dismissal

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On March 13, 2015, the U.S. Court of Appeals for the First Circuit affirmed the dismissal of a lawsuit seeking recovery of funds from the president of Environmental Careers Organization (ECO), a defunct Massachusetts non-profit company whose business was to place interns with the Environmental Protection Agency (EPA). ECO received compensation from the EPA for its costs of placing students in agency internships. EPA audited the accounts of ECO and then sought recovery of more than $6 million from it, forcing ECO into bankruptcy.

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