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In EPA Charts Middle Path for Making “Stationary Source” and “Major Source” Determinations, Matt Morrison and Bryan Stockton discuss the EPA’s new final rule applicable to upstream and midstream emission sources in the oil and gas sector. In particular, they discuss the EPA’s new definition of “adjacent,” a definition that is a key factor in determining whether there is a single “stationary source” for purposes of the Prevention of Significant Deterioration and Nonattainment New Source Review programs or a “major source” for purposes of the Clean Air Act Title V operating permit program.

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Did you know that California’s Contractors’ State License Law, Bus. & Prof. Code §§ 7000 et seq., requires licensees to report various information to the Contractors State License Board (CSLB) “within 90 days” of the effective date or event? ninetyFailure to report required events or information could result in the automatic suspension of your license and, in some cases, revocation of your license for 1 to 5 years. Some of these triggers include:

Changes in Personnel (Bus. & Prof. Code § 7076)

California requires that certain persons be listed on the contractor’s license application and the licensee to otherwise keep the CSLB informed regarding certain persons affiliated with the license. Of course the qualifier for the license, i.e., the responsible managing officer (RMO) or responsible managing employee (RME) for each license classification must be identified. In addition, California corporations are required to provide the names of the president, secretary, and treasurer of the licensee. In contrast, foreign corporations are only required to provide the name of the president of the licensee. (Recall that officers that are identified will be required to be fingerprinted and undergo the background check.) When individuals listed on the license change, the CSLB requires the licensee to provide notice of such changes. The CSLB provides forms to change the following persons listed on a license: Continue reading

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elevenOur clients asked and we responded. From planning to disposition, Pillsbury’s Development Life Cycle Map illustrates the capabilities of Pillsbury attorneys to represent clients as they face eleven key stops along The Path. Designed as a quick reference, our Development Life Cycle Map is available in hard copy and digitally.

Photo:  Mark Morgan, Eleven, Taken July 27, 2014 – Creative Commons

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In Awardee Protests: A New Horizon?, my colleague John Jensen and I discuss a new decision from the U.S. Court of Federal Claims — National Air Cargo Group , Inc., v. U.S. — that opens the door to the possibility of a bid protest by an awardee under a multiple-award indefinite delivery, indefinite quantity (IDIQ) contract. Previous decisions had held that a multiple-award IDIQ awardee lacks standing to protest the government’s award of additional contracts.

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Builders and contractors may be interested to learn that, in the past few days, the Supreme Courts of Texas capitoland Colorado, and the U.S. Court of Appeals for the DC Circuit have issued significant rulings addressing the separation of powers at the state and federal level.

An Ordinance’s Overreach
On April 29, the Supreme Court of Texas, in BCCA Appeal Group, Inc. v. City of Houston, Texas, held, in an 8 to 1 ruling, that the Texas Clean Air Act (TCAA) and the TCAA’s enforcement mechanisms imbedded in the Texas Water Code preempt a City of Houston ordinance that required emissions-emitting facilities located within the city limits to register their facilities with the City of Houston, and to pay registration fees. Although the TCAA expressly provides that municipalities like the City of Houston can pass air quality ordinances, the Court noted that they cannot pass local laws inconsistent with the TCAA and the Texas Commission on Environmental Quality’s (TCEQ) enforcement policy and procedures. Indeed, the City of Houston’s ordinance makes unlawful what the TCAA allows. While the ordinance expressly incorporated the air quality rules of the TCEQ, this was not enough to save the ordinance from being invalidated to the extent that registration was required that could result in criminal enforcement by the City of Houston. The consequences of this decision may result in a concentration of air quality enforcement authority in the TCEQ, and cities in Texas will need to exercise caution in promulgating local ordinance that could conflict with state policy.

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On April 15, 2016, the Government Accountability Office (GAO) issued a proposed rule in the Federal Register that would amend its current bid protest regulations, codified at 4 C.F.R. Part 21. The proposed rule adds a degree of formality to the protest process, but overall the rule mainly codifies or clarifies existing protest practices. In Proposed Changes to GAO Bid Protest Rules: Greater Formality, Overall Familiarity, my colleagues John Jensen, Dick Oliver, Meghan Doherty and I summarize the key proposed amendments.

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In False Claims Act “Implied Certification” Update: Supreme Court Oral Argument Forecasts Continued Vitality of Controversial Doctrine, we, along with our colleague Danielle Vrabie, report on the recent oral argument before SCOTUS,supremecourt in United Health Services v. United States ex rel. Escobar, No. 15-7, a case expected to resolve the current split among federal courts of appeals on the so-called “implied certification” theory of liability under the federal False Claims Act (FCA). SCOTUS’ decision, whatever it is, will have an enormous impact on the federal contractor and subcontractor community. If SCOTUS follows the expansive interpretation of implied certification endorsed by the First Circuit in Escobar, then federal contractors and subcontractors will be vulnerable to the risk that the government will escalate any lack of contract compliance into an FCA investigation.

Additional Source: Supreme Court to Hear False Claims Act “Implied Certification” Appeal; SCOTUS Expected To Resolve Circuit Split on Implied Certification Under FCA

Photo:  Ryan Wick, Supreme Court Room, Taken December 29, 2009 – Creative Commons

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In New York High Court Gives the Bronx Cheer to Insurers’ Pro Rata Allocation and Exhaustion Arguments, Pillsbury attorney  discusses New York State Court of Appeals’ decision in In re Viking Pump, Inc. The Court of Appeals accepted two certified questions from the Delaware Supreme Court. As noted by Ben, “in a New York minute,” the Court of Appeals has “leveled the playing field by endorsing the ‘all sums’ and ‘vertical exhaustion’ approach to allocation advocated by a policyholder, at least as to policies containing ‘non-cumulation’ and ‘prior insurance’ provisions.” This ruling will be of interest to those who have encountered in New York barriers to insurance coverage where multiple policies over multiple policy terms are implicated, including, but not limited to, coverage for environmental or asbestos liabilities.

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Roughly two weeks before annual National Stand-Down Week (May 2-6), New York’s Appellate Division, RebarGridSecond Department, in Vitale v. Astoria Energy II, LLC, affirmed a trial court’s dismissal of a worker’s personal injury claim resulting from a fall at a construction site. Specifically, the Appellate Division held that Vitale failed to create an issue of fact as to whether an alleged dangerous condition on a construction project presented an elevation-related hazard in accordance with New York’s Scaffold Law – Labor Law §§ 240(1) and 241(6). Labor Law § 240(1) was designed to prevent elevation-related risks, and holds owners and contractors absolutely liable (without consideration of the worker’s comparative fault) in the event of a statutory violation that causes an elevation-related injury. Labor Law § 241(6) imposes vicarious (but not absolute) liability upon owners and contractors for a violation of the Industrial Code that causes a worker’s injury, but allows consideration of comparative negligence.

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Join in the National Safety Stand-Down May 2-6, 2016. The purpose of the stand-down is to raise awareness about preventing fall hazards in the construction industry. Fatalities caused by falls from elevation continue to be a leading cause of death for or serious injury to construction workers. The U.S. Department of Labor, Occupational Safety & Health Administration’s (OSHA) goal is to reach 5 million workers, which is more than more than half of the construction workers in the U.S. To participate in the safety stand-down, a company can host a voluntary event to talk directly to employees about safety. The event doesn’t have to be formal. Companies are encouraged to adopt a stand-down plan approach that works best for their workplace, including, for example, safety activities such as safety equipment inspections, developing rescue plans, or discussing job specific hazards. It can even take the form of a “toolbox talk.”

Additional Source: Evento nacional destacará importancia de la prevención contra las caídas: primera causa de muerte y lesiones graves en industria de la construcción; Suggestions to Prepare for a Successful Stand-Down; Stand Up For Safety, Join in the Safety Stand-Down June 2 – 6