Yesterday, I posted my client alert Reversing Course, EPA Tightens Its RCRA Hazardous Waste Recycling Rules. This Alert discusses the EPA's harder line on its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling following years of relative easing into these rules. A recently issued regulation makes recycling almost as heavily regulated as other hazardous waste management activities under the RCRA.
Today, the Nevada State Contractors Board (NSCB) issued an Industry Bulletin confirming that, in recent months, it "has been seeing an increase in the number of out-of-state solar manufacturers entering into contracts with licensed Nevada contractors to perform solar installation services for Nevada residents." It noted that many of these out-of-state manufacturers do not possess a Nevada contractor's license and the Nevada contractors performing installation services for such businesses are being disciplined by NSCB for aiding and abetting an unlicensed contractor.
Yesterday, Pillsbury attorneys Chris Wall, Steve Becker, Nancy Fischer, Aaron Hutman and Stephanie Rohrer published their advisory titled Treasury and Commerce Departments Issue Regulations to Implement New Cuba Policy. The Advisory discusses the Obama administration's implementation of its promised changes to U.S. sanctions and export controls for Cuba, changes effective January 16, 2015. Although most trade and transactions still are prohibited, the revisions to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR) ease licensing requirements in a number of areas, including exports to and imports from Cuba of certain types of goods and services, telecommunications and Internet services, travel and travel services, financial services, remittances, and treatment of Cuban nationals in third countries.
On January 14, 2015, the U.S. Court of Appeals for the Fifth Circuit decided an important Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607(a)(3)("CERCLA"), liability case: Vine Street LLC v. Borg Warner Corporation. The Court of Appeals held that as a result of a 2009 decision of the U.S. Supreme Court, Burlington Northern & Sante Fe Railway Co., et al., v. United States, 556 U. S. 599 (2009), Borg Warner was not liable to Vine Street for CERCLA cleanup costs under a theory of "arranger liability" or for cleanup costs under the Texas Solid Waste Disposal Act ("TSWDA").
On November 5, 2014, a panel of the U.S. Court of Appeals for the Fifth Circuit refused to reconsider its June 2014 decision affirming the District Court's decision that B.P. Exploration & Production, Incorporated and Anadarko Petroleum Corporation can be held liable for violating the Clean Water Act (CWA) in connection with the massive Deepwater Horizon oil spill in the Gulf of Mexico. BP and Anadarko owned and operated the well, but they argued that the floating rig, owned and operated by Transocean (which has already settled its liability) and not the well was the source of the oil spilling into the Gulf of Mexico. In the earlier ruling, the panel held that under the plain terms of the CWA, the defendants were liable because "there was no dispute of material fact that controlled confinement of oil was lost in the well", and that the well "was a point from which oil or a hazardous substance was discharged". BP and Anadarko argued that it was the Deepwater Horizon rig and its appurtenances constituted the point at which control of the oil was in fact, lost.
On January 9, 2015, Fifth Circuit issued another ruling, rejecting the petitioners' request for a rehearing en banc. The vote rejecting the petition was surprisingly close, 7 to 6, with two abstentions. In a vigorous dissent, Judge Clements stated that the denial of the petition "ensures that our precedent concerning liability for oil spills under the Clean Water Act remains unclear". The panel's "controlled confinement" test does not follow from the text of the Clean Water Act, and, moreover, Fifth Circuit precedent in ambiguous civil penalty cases should be resolved in favor of the defendant, and this precedent was not followed here.
In its Public Notice of Nevada State Contractors Board (NSCB) Meeting scheduled for January 22, 2015 at 8:30 a.m. by videoconference at its Henderson and Reno NSCB offices, the NSCB's agenda indicates that the meeting may include a legislative discussion and possible action on several pre-filed senate and house bills.
On January 7, 2015, the U.S. District Court for the Central District of California held that California's ban on the sale in California of foie gras--a delicacy made from fattened and force-fed duck liver--was preempted by federal law, namely the Poultry Products Inspection Act (PPIA), 21 U.S.C. §§ 451-470. The case is Associations Des Eleveurs De Canards et D'Oies Du Quebec, et al., v. Kamala Harris, Attorney General of California. This is an example of the preemptive effect of federal legislation, which will often trump conflicting state law, especially in business matters.
The plaintiffs, a group of Canadian farmers, alleged that this ban has caused them to lose millions of dollars in sales in California, and the court held that they had standing to bring this lawsuit. The District Court then reviewed the California statute (enacted in 2012) and the provisions of the PPIA, and determined that the California law conflicts with and is preempted by the federal law, which regulates the distribution and sale of poultry products in interstate commerce.
Some of the issues in this case have already been reviewed by the Ninth Circuit, which held in 2013 that the California Attorney General was not entitled to Eleventh Amendment immunity (see 729 F. 3d 937), and it is likely that another appeal will be made to the Ninth Circuit. The Ninth Circuit has recently upheld several state laws against such challenges.
On December 29, 2014, the U.S. District Court for the Eastern District of North Carolina held that the plaintiffs in a Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA) citizens-suit against the owners and operator of a swine farm had the right to have the case tried before a jury. The case is North Carolina Environmental Justice Network, et al , v. Taylor, et. al. It is alleged that the defendants illegally dumped swine waste into the waters and onto the lands surrounding the swine farm. The defendants challenged the demand for a jury trial, and both sides argued that a 1987 Supreme Court decision, Tull v. U.S., 481 U. S. 412 (1987), supported their positions. After reviewing the Tull case and other precedents, the District Court held that the Tull decision, which discussed the right to a jury trial when the federal government was seeking civil penalties, was a Seventh Amendment right available to either side in a citizens-suit case.
On January 9, 2015, the U.S. District Court for the District of Columbia approved a proposed consent decree that had been negotiated by EPA and the California Air Resources Board (CARB) that resolved the government's claims that Hyundai Motor Company, Hyundai Motor America, Kia Motors Corporation, Kia Motors America, and Hyundai America Technical Center, Inc. violated the Clean Air Act and the California Health & Safety Code by falsifying fuel economy and greenhouse gas emissions claims that affected more than 1 million vehicles sold in the 2012 and 2013 model years.
It was alleged in the consent decree that there was a discrepancy in the information provided by the defendants in connection with the application for "Certificates of Conformity" and the actual specifications of the vehicles in that the vehicles provided lower fuel economy and emitted higher emissions than was stated in the applications. 126,000 vehicles were sold in California, and the $100,000,000 civil penalty--the largest yet recovered--was split between the U.S. Government ($93,700,000) and the State of California ($6,300,000). In addition, Hyundai agreed to forfeit 4.75 million greenhouse gas credits.
The proposed settlement was published in the Federal Register, and several comments were received. Some of the commenters requested that Hyundai also provide $25 million of Supplemental Environment Projects in some states, but the United States rejected this request, arguing that to do so would unravel the settlement that had been negotiated. The decision is reported as United States of America, et al. v. Hyundai Motor Company, et al.
Today, the California State Contractors License Board (CSLB) announced that, over the weekend, it issued its one-millionth contractor license to a tree service company in Norwalk, California. The CSLB was created on August 14, 1929, with the support of the State of California's construction industry, so the public would be protected from irresponsible contractors.The law creating the CSLB defined three contractor categories that remain in effect today: Class "A" General Engineering, Class "B" General Building, and Class "C" Specialty contractors. In 1939, those categories evolved into the original license "classifications" and CSLB also began to examine applicants on their trade qualifications.
Existing California law allows a plaintiff to collect statutory damages in a construction-related accessibility claim against a place of public accommodation only if the plaintiff was denied full and equal access to the place of public accommodation on a particular occasion, as specified. It also requires a demand letter alleging the construction-related accessibility claim to, among other things, state facts sufficient to allow a reasonable person to identify the basis of the claim, and imposes a $1,000 limit on such statutory damages if the defendant demonstrates that it has, among other things, cured the construction-related accessibility violation within 60 days of being served with a complaint. Assembly Bill 54 (Olsen), introduced in early December 2014, seeks to amend this law to provide that, when a plaintiff brings a claim alleging a violation of a construction-related accessibility standard within 3 years of a change in that standard, a plaintiff may only collect statutory damages if she/he also provides the owner, agent, or other party responsible for the place in violation with a written notice or demand letter with specified information at least 60 days prior to filing any action and the violation is not cured.
California Civil Code § 55.56 would be amended to read (new language underlined):
"(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.occasion, and the requirements of Section 55.565 have been met, if applicable."
New California Civil Code § 55.565 would provide:
" (a) When a plaintiff brings a construction-related accessibility claim alleging a violation of a construction-related accessibility standard within three years of a change in that standard, statutory damages under subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered against a place of public accommodation only if the plaintiff provides the owner, agent, or other party responsible for the place of public accommodation where the alleged violation occurred with sufficient written notice of the allegations and alleged access barriers on which the claim is based at least 60 days prior to the filing of any action and the alleged access barriers are not removed.
(b) A written notice is sufficient for the purposes of subdivision (a) if either of the following conditions is met: (1) The notice states facts sufficient to allow a reasonable person to identify the basis of the construction-related accessibility claim under subdivision (a) of Section 55.31 and states that the recipient may be civilly liable for actual and statutory damages for a violation of a construction-related accessibility requirement if the access barriers that constitute the basis of the construction-related accessibility claim are not removed within 60 days. (2) The notice is a written demand letter that offers prelitigation settlement negotiations in accordance with subdivision (b) of Section 55.31.
(c) For the purposes of this section, "construction-related accessibility claim," "construction-related accessibility standard," and "place of public accommodation" have the meanings set forth in Section 55.52."
Yesterday, we published our client advisory titled A Cautionary Tale for Small and Large Businesses in a Mentor-Protégé Relationship: Size Appeal Of Kisan-Pike. The Advisory discusses the Small Business Administration ("SBA") Office of Hearings and Appeals' ("OHA") November 24, 2014 finding that a mentor-protégé joint venture agreement between Kisan Engineering Company P.C., a small 8(a) business, and The Pike Company Inc., its large business mentor, caused the joint venture to lose its status as a small business. As a result, the joint venture was not qualified to receive a contract award on a procurement reserved for small businesses. OHA disqualified the mentor-protégé joint venture despite the fact that the SBA had approved the Kisan-Pike mentor-protégé agreement, through which Pike was to mentor Kisan.
On December 9, 2014, the U.S. Civilian Board of Contract Appeals ("CBCA") decided Kiewit-Turner, a Joint Venture v. Department of Veterans Affairs, in which general contractor Kiewit-Turner ("KT") scored a major victory against the Department of Veterans Affairs ("VA"). The CBCA ruled that a change order required the VA to deliver a design that could be built for costs that were capped at a specified amount -- shifting risk to the owner from the contractor.
The interpretive rule published by Environmental Protection Agency (EPA) and the Corps of Engineers regarding the applicability of Section 404(f)(I)(A) of the Clean Water Act (CWA), effective March 25, 2014, will be withdrawn;
None of the funds made available by this Act may be used to require a permit for the discharge of dredged or fill materials for activities identified in Section 404(f)(1)(a), (c) of the CWA
None of the funds made available by this Act may be used by the Department of the Interior to write or issue, pursuant to Section 4 of the Endangered Species Act, to proposes a listing for the greater sage-grouse;
No funds may be used to promulgate or implement any rule requiring the issuance of permits under Title V of the Clean Air Act for emissions of greenhouse gases from biological products associated with livestock production;
The President is directed to provide the Congress with a comprehensive report describing in detail all federal agency funding of domestic and foreign climate change programs for fiscal years 2014 and 2015;
There will be no greenhouse gas reporting requirements for emissions from manure management programs;
Any projects financed by grants for state projects financed by funds from the Safe Drinking Water Act will use American iron and steel products; and