Federal Court Refuses to Enjoin Renovation of Historic Railroad Tunnel in Washington, DC

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The U.S. District Court for the District of Columbia has denied a request for a preliminary injunction to stop the U.S. Department of Transportation from granting necessary permits to begin the reconstruction and repair of the Virginia Avenue Tunnel, a tunnel which for 111 years has facilitated rail transportation through and under the Capitol Hill neighborhood of Washington, DC. The case is Committee of 100 on the Federal City v. Anthony Foxx, Secretary of the US Department of Transportation, and it was decided on April 7, 2015.

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Are "Narrative Water Quality Standards" Incorporated into NPDES Permits and Enforceable as Permit Conditions?

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Federal district courts are often confronted with the issue of whether "Narrative Water Quality Standards" are incorporated into National Pollutant Discharge Elimination System (NPDES)permits and enforceable as permit conditions as they preside over citizen suits filed under the Clean Water Act (CWA). Two District Court's recently weighed in on this issue.

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House Small Business Bill Could Have a Large Impact on Small Businesses

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Yesterday, we published our client alert titled House Small Business Bill Could Have a Large Impact on Small Businesses. The Alert discusses the House Small Business Committee's recent approval of The Small Contractors Improve Competition Act of 2015 (H.R.1481) ("SCICA"). SCICA would amend the Small Business Act and the National Defense Authorization Act for Fiscal Year 2013, and is intended to increase the number of awards made to small businesses by addressing several perceived obstacles that inhibit opportunities to increase small business participation in Federal contracting.

Is FOIA A Tool In Your Tool Belt? District Court Weighs In With Long Opinion On FOIA Obligations

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The Freedom of Information Act, 5 U.S.C. § 552 (FOIA), is a federal law that allow for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. FOIA defines agency records that are subject to disclosure, outlines mandatory disclosure procedures and grants exemptions from disclosure. Many states similar laws governing the disclosure of previously unreleased information and documents controlled by the state and its agencies. The theory is that the government should be open and transparent unless the government has a good reason to withhold the information sought. On March 31, 2015, the U.S. District Court for the District of Columbia issued a long opinion in Sea Shepherd Conservation Society v. Internal Revenue Service, regarding the IRS's response to Sea Shepherd's FOIA request seeking information from the IRS about its investigation of Sea Shepherd.

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Smith versus Swampbuster

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The implementation of the U.S. Department of Agriculture's Highly Erodible Land Conservation and Wetland Conservation Compliance provisions (aka "Swampbuster") program, designed to protect wetlands located on farming property, was the focus of a ruling by the U.S. Court of Appeals for the Sixth Circuit. On April 1, 2015, the Court of Appeals decided the case of Maple Drive Farms Limited Partnership, et al., v. Tom Vilsack, Secretary, United States Department of Agriculture. On appeal, the Sixth Circuit reversed the District Court's ruling and remanded the matter, holding that the proceedings conducted by the agencies of the Department, described by the District Court as a "bureaucratic labyrinth" were inconsistent with the Department's own regulatory framework, and were arbitrary and capricious.

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TX Court of Appeals Issues Ruling re Environmental Indemnities

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A state Court of Appeals sitting in Houston, Texas, on March 26, 2015, ruled that environmental indemnities, which were a component of an exchange of Louisiana oil and gas properties in 1994, could be enforced today by and against the corporate successors to the original companies that negotiated these provisions. The case is ConocoPhillips Company v. Noble Energy, Inc., No. 14-13-00884-CV. The decision is significant because ConocoPhillips settled a claim for environmental damages associated with these swapped properties filed by the State of Louisiana and the Cameron Parish School Board for $63 million, and had made a demand for defense and indemnity that was denied.

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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