The Environmental Protection Agency (EPA) is required by Section 108 of the Comprehensive Environmental Response, Compensation, and liability Act of 1980, 42 U.S.C. §§ 9601–9675 (CERCLA), to establish financial assurance and responsibility rules for classes of facilities that are associated with the production, transportation, treatment, storage or disposal of hazardous substances. Despite the deadlines provided by the law, more than 30 years have passed without any rules or proposed rules being published by EPA.
The Presidio Army Base in San Francisco, once the headquarters of the Sixth Army and a favorite post of many soldiers and their families, is now a National Park and a National Historic Landmark. For many years, plans to renovate and protect the old post have been thoroughly discussed and vetted. On January 27, 2016, the U.S. Court of Appeals for the Ninth Circuit removed one more obstacle to the consummation of these plans by affirming the district court’s summary judgment in favor of the Trust.
A Wisconsin District Court, in Mary Haley, et al. v. Kolbe & Kolbe Millwork Co. Inc., No. 14-cv-99-bbc, recently denied a motion to certify a proposed nationwide class action of plaintiffs alleging their windows are defective. They claim breach of express and implied warranties under state law relating to allegedly defective windows installed in the representative plaintiffs’ homes as far back as 1997, and four proposed subclasses across 50 states. Ruling on the plaintiff’s motion, the District Court found that they failed to satisfy the requirements of Federal Rule of Civil Procedure 23(a) (prerequisites) and (b) (types of actions). It identified numerous defects in the plaintiffs’ motion, and observed that “class certification of all of the issues in this case would be unmanageable under Rule 23(b)(2) or (3).” Even so, the Court has given the plaintiffs one final opportunity to file a request for certification, which addresses the concerns it outlined in a 48-page Opinion and Order. Whether or not this particular effort succeeds, cases such as Mary Haley should stay on the radar of industry general counsel. Wherever there is potential for class certification, there is the potential for significant potential exposure and industry-wide repercussions.
In the fall of 2015, California Governor Jerry Brown signed into law Senate Bill 560 (Monning), a bill sponsored by the California Contractors State License Board (CSLB), that allows CSLB enforcement representatives (ERs) to issue a Notice to Appear in a California superior court enforcing a licensee’s obligation to secure valid and current workers’ compensation insurance in accordance with Section 3700.5 of the California Labor Code. Prior to enactment of SB 560, only California district attorney offices could issue citations to enforce this obligation. California law requires employers to have workers’ compensation insurance if they have even one employee, which includes a responsible managing employee (RME), and Section 7125 of the California Business & Professions Code requires all contractors with a C-39 Roofing classification to have a Certificate of Workers’ Compensation Insurance or a Certificate of Self-Insurance on file with the CSLB. California contractors and subcontractors should expect an uptick in the CSLB’s enforcement of California’s workers’ compensation insurance requirements.
In FAA Updates Guidance on Obstruction Lighting, Pillsbury partners Jennifer Trock and Ken Quinn the Federal Aviation Administration recently released guidance on obstructions that may impact the National Airspace System, such as tall buildings, energy and electricity infrastructure, and communications towers. The FCC provides updated guidance for builders and developers on the requirements for marking and lighting any structure. Jennifer and Ken encourage developers to familiarize themselves with the new guidance, which will apply to new construction.
Photo: xlibber, Another Airplane! Taken on June 05, 2010 – Creative Commons.
In Five Things You Need to Know About the Extension of the ITC/PTC, Pillsbury partners Nick Sarad and Tom Morton, and senior law clerk Andrés Berry discuss the 2016 Consolidated Appropriations Act (H.R. 2822) and the extension of federal income tax credits for solar, wind and certain other renewable energy facilities.
Photo: Chris Potter, 3D Green Footprint, Taken December 7, 2012 – Creative Commons
In U.S. Repeals Longstanding Ban on Export of Crude Oil, my Pillsbury colleagues Dan LeFort, Paul Marston, Andrew Homer, Tom Campbell and I discuss the President’s recent signing of the Consolidated Appropriations Act, 2016, an Act that funds the Federal government through fiscal year 2016, and its repeal of the 40-year ban on the export of crude oil.
In IRS Provides Additional Guidance on Treatment of Same-Sex Marriages under Benefit Plans, Pillsbury partner Peter Hunt and senior law clerk Benjamin Asch discuss the IRS’s guidance in IRS 2015-86, in which provides guidance to sponsors and administrators of employee benefit plans regarding the application of the U.S. Supreme Court’s decision in Obergefell v. Hodges to plan participants with same-sex spouses.
Photo: Steve Snodgrass March 3, 2012 – Creative Commons
In their alert “Reverse CEQA” Reversed, California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project, Pillsbury attorneys Norman Carlin, David Farabee, Marne Sussman and Emily Burkett discuss the California Supreme Court’s recent rejection of a requirement of so-called “reverse CEQA” analysis, concluding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents.” The case is California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015).
Public and private contractors take note of new law in Nevada that limits retainage for both public and private works contracts to five percent. Previously, for public works contracts, a public body undertaking a public work was permitted to withhold as a retainage at least five percent from progress payments made to a contractor during the first half of the project and, after completion of half of the project, the amount of the retainage became optional. Under amended Section 338.515(1) of the Nevada Revised Statutes (NRS), five percent must be withheld as retainage until 50 percent of the work required by the contract has been performed. In contrast to public works projects,