"Enhanced Coordination Process" Memo Is a "Procedural Rule" Not A "Legislative Rule"

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By Pillsbury Winthrop Shaw Pittman

Recently, the DC Circuit decided the case of National Mining Association v. McCarthy. Reversing the lower court, the court held that an "Enhanced Coordination Process" memo and guidance authored by EPA and the Corps of Engineers to coordinate their joint review of coal mining Clean Water Act, 33 U.S.C. §§ 1251, et seq. ("CWA"), water discharge permits was only a procedural rule and not a "final action" subject to review under the APA. The Court of Appeals concludes that the memo only enhances these agencies' ability to coordinate the application of their duties under the CWA, and does not change their substantive statutory responsibilities.

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"Permit Shield" Defense Unavailable When Presence of Pollutant Was Not Disclosed In Permit Application Process

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The Fourth Circuit Court of Appeals has issued a ruling in the case of Southern Appalachian Mountain Stewards v. A & G Coal Corporation. The Court of Appeals affirmed the lower court's decision in a Clean Water Act, 33 U.S.C. §§ 1251, et seq. ("CWA"), citizen suit lawsuit that A & G could not assert the "permit shield" defense. A & G operates a coal mine in Virginia, and has a National Pollutant Discharge Elimination System ("NPDES") permit; the permit application did not list selenium as a pollutant because the coal company argued that it had no reason to believe that this toxic pollutant was discharged from its facility, and that the permit shield defense of CWA Section 1342(k) was available. Sampling at the outfalls disclosed the presence of selenium, but the parties disagree as to whether the concentrations violate any state water quality standards. The Court of Appeals closely examined the disclosures required of an NPDES permit applicant, and determined that A & G had not made an adequate disclosure to trigger the permit shield defense. The failure to fully comply with these disclosure requirements, especially regarding a substance like selenium, meant that A & G could not deploy this defense to liability.

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English Contract Law: Has the Camel's Nose of "Good Faith" Crept Under the Tent Flap?

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Ray Sweigart posted his client advisory English Contract Law: Has the Camel's Nose of "Good Faith" Crept Under the Tent Flap? The Advisory discusses Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm), which involves a challenge brought under Section 67 of the English Arbitration Act 1996 that the tribunal lacked substantive jurisdiction.

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

Second Circuit - Architect's Faulty Designs Were Two Separate Defects

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On June 23, 2014, the Second Circuit Court of Appeals issued a decision in the case Dormitory Authority of the State of New York v. Continental Casualty Company (2014 WL 2808073), a declaratory judgment action filed by a building owner against the architect's insurance carrier over the faulty design of a dormitory. The issue in this case was whether two design defects in the structure of the building were "related." The owner sought a declaration that the design flaws were two separate defects because, if so, two separate policies would have responded to the claims, but if not, there would not have been sufficient limits to remediate both defects. Although this decision has not received much attention yet, the importance lies in the Second Circuit's agreement that the defects were separate, notwithstanding policy language that attempted to group related wrongful acts.


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Avoid License Application Being Denied ~ CA Live Scan Fingerprinting

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California's Contractors' State License Law, Bus. & Prof. Code
§§ 7000, et seq., requires all contractor's license applicants to submit a full set of fingerprints for a criminal background check. Once submitted, the fingerprints are compared to the records of the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) to determine if the applicant has a criminal history. The Contractors State License Board (CSLB) has confirmed that "[t]he number one reason that an application may be denied is the applicant's failure to accurately disclose his/her conviction record."

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FCC "Accessing Social Media" Event

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The Federal Communications Commission's Accessibility and Innovation Initiative will host an "Accessing Social Media" event on Thursday, July 17, 2014 from 9 a.m. to 4 p.m. in the Commission Meeting Room in its headquarters located at 445 12th Street, S.W., Washington, D.C. The event will be webcast without open captioning. The event is open to the public, however, RSVPing for in-person attendance is encouraged.

The FCC's stated purpose of the event is "to facilitate a collaborative, cross-sector exchange of information about making social media tools and content accessible to people with disabilities, including information about authoring tools, client apps and best practices." The event will include panels of industry, consumer and government representatives and feature technology demonstrations in an exhibit area.

Additional Sources: Social Media, Not Just For Everyone Else

One More Reason To Treat Yourself To A McFlurry...

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The Sacramento Ronald McDonald House recently broke ground on a project to double the capacity of its housing facility located at 49th Street on the U.C. Davis Medical Center campus with a $6 million expansion. The expansion will add 20 bedrooms to the existing 18 bedroom facility, and add a kitchen, dining area, indoor playroom and fitness facilities. The 18,000 square foot expansion was made possible from a variety of fundraising efforts.

There are a total of 11 Ronald McDonald's Houses in California. Reportedly, McDonald's funds approximately 16% of the financial needs, which includes donating $0.15 for each McFlurry sold.

Additional Source: Sacramento Ronald McDonald's House will double capacity in $6 expansion; Ronald McDonald House Charities

Take Note of Mississippi's New Mechanic's Lien Law

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On April 11, 2014, Mississippi Governor Phil Bryant signed into law Senate Bill 2622, enacting a construction lien law to protect contractors, subcontractors, materialmen, registered architects and professional engineers, and registered land surveyors. Compliance with the new law is imperative to avoid forfeiture of your right to a lien claim and to maintaining an enforceable lien.

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Fifth Circuit Reverses Lower Court's Whooping Crane Decision

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On June 30, 2014, the US Court of Appeals for the Fifth Circuit reversed the lower court's determination that the State of Texas' administration of its water management authority under state law violated the Endangered Species Act (ESA) Whooping Crane.jpgby "taking" whooping cranes, a protected species under the ESA, by failing to ensure that adequate supplies of freshwater flowed into the river serving the Aransas National Wildlife Refuge, located along the Texas coast. To remedy the situation, the lower court ordered the state officials to refrain from approving or granting new water permits until the State of Texas persuaded the court that such permits will not take whooping cranes in violation of the ESA. The case is The Aransas Project v. Shaw.

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It's Hot Outside!!! Be Cool, Check Out OSHA's Heat Safety App...

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Evidently everyone does have an App, except me. OSHA's Heat Safety Tool App enables workers and supervisors to calculate the heat index for their worksite. Hot Outside.jpgBased on the heat index, the App displays a risk level to outdoor workers and access via a "click" to reminders about the protective measures that should be taken at that risk level to protect workers from heat-related illness-reminders. Remember that the industries most affected by heat-related illness include construction; trade, transportation and utilities; agriculture; building, grounds maintenance; landscaping services; and support activities for oil and gas operations.

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California DIR Approved 2014/15 Alternative Security Program For Employers In California Who Self-Insure

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Today, the California Department of Industrial Relations (DIR) announced that it has approved implementation of the 2014/15 Alternative Security Program (ASP), which it boasts that this "first-in-the-nation, innovative program" "frees $7.54 billion in working capital and provides self-insured California businesses greater financial flexibility."

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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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UPDATE: Sacramento Business Journal, CEO-led economic development group searches for leader (Jul. 23, 2014)

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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