Contractors Beware: Recent Supreme Court Rulings Will Impose More Environmental Restrictions

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United States Supreme Court decisions provide guideposts for the exercise of environmental permitting and enforcement power by state and federal authorities. Whether a particular facility can be permitted often determines whether it can be built or modified after it has been constructed. In addition, a decision such as the Court's ruling in the case of Marvin Brandt Revocable Trust v. US has a bearing on land use considerations. Even a decision by the Court not to take up a case will have these same consequences. For instance, the Court's refusal to review the Mingo Logan Coal Company v. EPA leaves undisturbed the EPA's asserted power to overturn a Corps of Engineers' permitting decision, which may create disincentives to begin a project in the first place if it looks controversial.

Recently, we published our advisory Supreme Court Roundup: Recent Environmental Law Rulings and Pending Cases. Our Advisory discusses the United States Supreme Court's rulings affecting environmental law during the October 2013 Term. With significant pronouncements regarding EPA's Clean Air Act regulatory authority among them, however, the October 2013 Term was far from uneventful. Several more cases slated for the October 2014 Term presage rulings across a broad spectrum of environmental and administrative law issues.

Federal Contractor Employee Salaries Not So Secret Any More

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On September 15, 2014, the Office of Federal Contract Compliance Programs (OFCCP) released its Notice of Proposed Rulemaking ("Proposed Rule") implementing President Obama's Executive Order 13665 ("EO 13665") (April 8, 2014), banning federal contractors from taking adverse action against employees and applicants who discuss their pay. EO 13665 instructs that, within 160 days of the date of EO 13665, the Secretary of Labor shall propose regulations prohibiting federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or compensation of other employees and applicants. The Proposed Rule will apply to nearly all federal contracts exceeding $10,000 entered into or modified on or after the effective date.

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Exemptions Available to Some Contractors For New Mandated Paid Sick Leave In California

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By Pillsbury Winthrop Shaw Pittman

A new California law effective July 1, 2015 requires employers to provide at least 3 paid sick days per year. Workers covered by valid collective bargaining agreements meeting certain requirements are exempt, but contractors should review their sick leave policies for all employees to ensure they are in compliance. Please click here for a helpful guide to the new law prepared by Pillsbury's employment law group.

9th Cir. Rejects Use of Permit Shield Defense in a Clean Water Act Citizen Suit

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On September 4, 2014, the U.S. Court of Appeals for the Ninth Circuit issued a decision rejecting the argument that a Clean Water Act (CWA) "permit shield" required the dismissal of a CWA citizen suit. The case is Alaska Community Action on Toxics, et al. v. Aurora Energy Services, LLC; Alaska Railroad Corporation, which had been argued less than a month before the ruling was made. The defendants own and operate a coal loading facility located on the northwest shore of Resurrection Bay in Seward, Alaska. Since 2001, the facility has been covered by an EPA "multi-sector" General Permit for Stormwater Discharges, and the defendants argued that any spills of coal from the facility into Resurrection Bat was covered by this permit and the "permit shield" provisions of Subdivision (k) of Section 1342 of the CWA (33 U.S.C. § 1342(k)). The lower court agreed with the defendants and granted summary judgment.

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What's In A Name (Change)?

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Rule of Thumb: If the business entity's name change results in the California Secretary of State issuing a new registration number, a new California contractor's license will be required ~ a contractor's license is not transferrable. If a new license is required, you must file an application for original contractor's license and fulfill any other requirements, including bonding and insurance requirements. The license application approval process can take time, plan ahead and, if prudent, request that the license application approval process be expedited. (It is a misdemeanor for a person to engage in the business or act in the capacity of a contractor in California without having the requisite contractor's license.)

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U.S. District Court Finds BP Grossly Negligent in Deepwater Horizon Oil Spill

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On September 4, 2014, U.S. District Court Judge Carl Barbier issued a ruling holding that BP Exploration & Production Inc. is subject to enhanced civil penalties under the Clean Water Act (CWA) because the deadly April 20, 2010 blowout, explosion, fire and massive oil spill at the Macondo well in the Gulf of Mexico was due to BP's gross negligence and willful misconduct. Thousands of cases involving over a hundred thousand claimants have been filed in federal and state courts. The case is In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010. The Court's ruling is very long (over 150 pages), and consists of an exhaustive account of the accident, and well as Findings of Fact and Conclusions of Law.

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English Contract Law: Choice of Law and Forum Trumped? Beware (or at least be aware) of the Commercial Agents Regulations.

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorney Ray Sweigart published his client advisory English Contract Law: Choice of Law and Forum Trumped? Beware (or at least be aware) of the Commercial Agents Regulations. The Advisory discusses the English High Court's analysis, in Fern Computer Consultancy Ltd v Intergraph Cadworx & Analysis Solutions Inc [2014] EWHC 2908 (Ch) (29 August 2014), of the arguments for and against non-English forum selection and choice of law terms in commercial contracts involving English parties or performance in England, as well as permissive service of English court proceedings out of the jurisdiction. While the outcome was not final, it certainly sends a note of caution and a reminder to consult English qualified counsel before assuming that application of English law and English court proceedings can be avoided by contract.

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.

New Jersey Appellate Division Orders Reformation of Surety Bond Consistent With Terms of its Principal's Contract

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New Jersey's Appellate Division recently reversed a trial court's dismissal of a general contractor's claim against a performance bond, holding that the bond must cover the general contractor as the intended obligee, even though the general contractor was not expressly named in the bond.

In Allied Building Products Corp. v. J. Strober & Sons, LLC, et al., A-1113-12T4 (NJ App. Div., September 5, 2014), Dobco, Inc. ("Dobco") was the general contractor for a science hall renovation project at William Paterson University. J. Strober & Sons, LLC ("Strober") bid for and was awarded a roofing subcontract on the project. The subcontract between Dobco and Strober required Strober to obtain payment and performance bonds, in the form annexed to the Dobco-Strober subcontract (which required that Strober be named obligee on the bonds).

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California Contractor JV Licensing

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To bid for, contract for and perform work on most construction projects in California, a contractor must obtain a contractor's license, and construction contracts and subcontracts entered into must be in the licensee's name. When two licensees endeavor to undertake a project jointly, often they do so as what is commonly referred to as a joint venture or JV. (Such a venture may be established under a detailed written JV, bidding, teaming, partnership or LLC agreement, or may simply be a general partnership that results from the joint submission of a bid or performance of work.) What licensees may not realize is that to contract for work in the name of the joint venture, the licensees must first obtain a joint venture license from the Contractors' State License Board (CSLB). Contractors that JV should carefully review the rules governing when a joint venture license is required.

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California Expediting Well Drilling Licenses During Drought

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UPDATE: Nevada State Contractors Board, Horizons, Nevada contractors encouraged to seek California license to help alleviate health and safety issues during state's driest year on record (Nov. 2014); On September 15, 2014, the CSLB confirmed that it is also expediting applications for C-61/D-21 Limited Specialty Machinery and Pumps specialty contractor during the California drought.

The California Contractors State License Board (CSLB) issued Industry Bulletin 14-11a confirming that Governor Edmund G. Brown Jr. has proclaimed a State of Emergency and directed state officials to take all necessary actions to prepare for these drought conditions. The CSLB is doing its part, expediting applications for C-57 Well Drilling Contractors. In its Industry Bulletin, the CSLB also encourages Class "A" General Engineering Contractors that are authorized to perform water supply projects (but not well drilling unless they possess a C-57 Well Drilling classification) to add the C-57 classification to their license; Class "A" contractors who would like assistance expediting this process can call (916) 255-4118 or email CSLB's Classifications Deputy. It also reminds contractors that it has a reciprocity agreement in place for well drillers who are licensed in Nevada, which will further expedite the California licensing process.

A special teleconference with state agencies is scheduled for Thursday, September 11, 2014, at 7 a.m. to discuss how to meet well drilling regulations and expand access to ground water capacity.

Teleconference call-in information:
September 11, 2014, 7:00 a.m. PDT
1 (866) 640-4044
Passcode: 62224
Additional Resource: R-E-C-I-P-R-O-C-I-T-Y ~ Find Out What It Means To You; Agencies Expediting Well Drilling Licensing During California Drought

New Threat to "Bring Your Own Device" Policies: Employer Required to Reimburse Personal Cell Phone Expenses

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Tom Makris, Paula Weber and Erica Turcios posted their advisory New Threat to "Bring Your Own Device" Policies: Employer Required to Reimburse Personal Cell Phone Expenses. The Advisory discusses a far-reaching decision by the California Second District Court of Appeal in Cochran v. Schwan's Home Serv., Inc., Cal. Ct. App. No. B247160, (August 12, 2014). The Cochran court held that California Labor Code § 2802 requires employers always to reimburse employees who are required to use personal cell phones for work-related calls for a reasonable percentage of their cell phone bills, even when employees have cell phone plans with unlimited minutes or the plans are paid for by third parties.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Tom Makris, Paula Weber, or Erica Turcios , the authors of this blog.

New DC Circuit Standing Decision

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On August 26, 2014, the D.C. Circuit Court of Appeals decided the case of Sierra Club, et. al. v. Jewel, a case involving the National Register of Historic Places (Register), which is administered by the Department of the Interior. The Court of Appeals held, over the dissent of Senior Circuit Judge Sentelle, that the plaintiffs, a coalition of environmental groups and historic preservation organizations, have standing to challenge the decision of the Keeper of the Register that the "Blair Mountain Battlefield", the scene of a historic and violent encounter between coal miners and coal companies in the 1920's, and located in Logan County West Virginia, should not be included in the Register because the initial listing process was defective.

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Mexico's Energy Reform Provides Significant Opportunities in Oil and Gas Exploration and Production

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorneys John McNeece, Eric Save and Michael Hindus published their advisory titled Mexico's Energy Reform Provides Significant Opportunities in Oil and Gas Exploration and Production. The Advisory discusses Mexico's new energy legislation, which went into effect on August 12, 2014 and which will completely restructure the Mexican energy sector, including both hydrocarbons and electricity. This legislation opens up oil and gas exploration and production ("E&P") to the private sector, through authorization of new contract arrangements with the Mexican State or with PEMEX, while reaffirming Mexico's ownership of hydrocarbons in the ground. Mexico's opening to the private sector will generate numerous opportunities for E&P operators, the E&P arms of international oil and gas companies, suppliers, and investors.

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

Ohio's Revised Construction Industry Licensing Law ~ Effective Sept. 17, 2014

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On June 17, 2014, Ohio Governor John Kasich signed into law Senate Bill 78, a bill making changes to Ohio's construction industry licensing law and, in particular, modifying the law regulating special construction contractors. The new law is effective September 17, 2014.

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PermitsUSA ~ Innovative Solution

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The Nevada State Contractors Board (NSCB) recently received the National Association of State Contractors Licensing Agencies' 2014 Innovation in Regulation Award, an award that recognizes innovation, creativity, and excellence in regulation of contracting/construction industries. NSCB was recognized for its efforts in 2012 to partner with The Home Depot and local building departments to create and launch PermitsUSA, a kiosk system placed in The Home Depot stores allowing contractors and consumers to purchase building permits from multiple jurisdictions at one time.

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