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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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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.

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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

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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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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.

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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

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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.

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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 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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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 authored by Paul Casas