Posted
by

EPA has spent almost 40 years wrestling with the definition of “solid waste” for purposes of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (RCRA). The statutory definition of the term contemplates that it includes “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities…” 42 U.S.C. § 6903(27). Whether something is discarded and thrown away is pretty clear. However, this statutory definition appears to give EPA the flexibility—and subject to EPA’s regulatory authority—to define solid waste to include materials that are sometimes discarded. Adding to the interpretive issues, a solid waste can be liquid or gaseous, depending on the statutory definition. EPA has also been wary of countenancing a recycling exception, which has created a morass of regulatory interpretation. With more frequency, courts are being called upon to consider this definition.  Below we discuss two such recent court decisions of interest.

Continue Reading ›

Posted
by

In Fabozzi v. Lexington Insurance Company, the United States Court of Appeals for the Second Circuit has reaffirmed that ambiguities in an insurance policy must be construed against the insurer.

The Fabozzis were renovating their home when they learned that its interior walls were so rotted that the entire house was actually in the process of collapsing. Faced with the complete loss of their home, the Fabozzis understandably turned to their homeowners’ insurer, Lexington Insurance. The homeowners’ policy provided coverage for collapse caused by certain named perils, including hidden decay. But the policy also required that the collapse be “caused only by one or more of” the named perils. That simple, 7-word phrase led to Lexington’s denial of coverage and a decade of litigation.

Continue Reading ›

Posted
by

In our post Contractor Advertising in the Age of Social Media, we promised you a by-no-means exhaustive resource for the various laws, regulations and guidance on social media “advertising” for contractors throughout the United States. The following list is a state-by-state resource to help one get started navigating the never-uniform and always changing contractor licensing-related laws, regulations, rules and licensing agency guidance for contractor advertising. This list does not include opinions issued by any courts and, obviously, these would relevant to your analysis as well and, like laws, regulations and regulatory agency guidance, new court decisions are issued changing the legal landscape over time. This blog also will not be regularly updated.

Continue Reading ›

Posted
by

Most states and, in some cases, cities that require a person to obtain a license, or register, to perform work as a contractor or specialty contractor (e.g., electrical, HVAC, plumbing, other specialized trade work) socialmediaregulate what disclosures are required when the contractor advertises its services. Most commonly these laws or rules require the contractor to include its name and license number. What may surprise many is that “advertising” is often broadly defined or understood to include a business card, contract proposal and final contract, sign, billboard, lettering or decal on a vehicle, brochure, newspaper, magazine, airwave (e.g., TV, radio, etc.) or any electronic transmission (e.g., a company website, social media, including but not limited to. Instagram, Twitter, LinkedIn, Facebook, etc.). This includes any form of directory under any listing denoting “contractor” or any word having a similar meaning (though certain trade directories with limited circulation are sometimes exempt). This certainly may even include t-shirts, sweatshirts, softball team uniforms, etc. that employees wear bearing the contractor’s logo and company information. Given how social media has radically expanded and otherwise transformed the traditional mediums and outlets for offering and promoting services, it is more important than ever that contractors carefully consider whether they are “advertising” their services in compliance with any applicable state’s or, in some cases, city’s laws or rules when using these communication channels.

Continue Reading ›

Posted
by

Planning and constructing new power plants that will employ new technologies, especially those substantially funded by the federal government, can be a challenging business. Whenever a new law, regulation or agency process goes into effect, industry and legal observers await the often inevitable legal challenges that will arise. For obvious reasons, the exact parameters of any new regulatory program can be of material interest to anyone who makes a living in or near an affected industry. A case in point is the effort to build plants that will rely on carbon sequestration technology to reduce carbon dioxide emissions  generated by these facilities. Both the U.S. Department of Energy and EPA have developed plans and procedures to assist this development, which relies on environmental permits that often generate local opposition. And, thus, when the first Safe Drinking Water Act permits were issued in 2014, the legal challenge that followed was noteworthy. Unfortunately, observers will have to wait a while longer on that count, as this particular permit challenge has vanished in a puff of moot.

Continue Reading ›

Posted
by

Good news for those who respond to and engage in oil spill clean up efforts. In a ruling released on February 16, 2016, the U.S. District Court for the Eastern District of Louisiana, in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, dismissed, with prejudice, the “B3 Claims Against the Clean-Up Responder Defendants” engaged by the federal government to respond to and clean up the Deepwater Horizon oil spill. Thousands of claims were filed on behalf of boat captains and crew, workers involved in decontaminating vessels, clean-up workers and beach personnel involved in on-shore clean-ups, and residents who live and work in close proximity to coastal waters or who otherwise allege they were exposed to oil and/or dispersants. The defendants, and the manufacturer of the dispersants used, moved to dismiss the claims asserted, arguing, among other things, that they are entitled to derivative immunity under the Clean Water Act, 33 U.S.C. § 1321(j)(8) (CWA), entitled to discretionary function immunity under the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (FTCA), and that plaintiffs’ claims are preempted as a matter of law. The District Court ruled in the defendants’ favor under each theory.

Continue Reading ›

Posted
by

The U.S. Court of Appeals for the Sixth Circuit, in In re: United States Department of Defense and United States Environmental Protection Agency Final Rule:  Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,050 (June 29, 2015), in a split opinion, confirmed that it has jurisdiction under the Clean Water Act to hear challenges to the new rule promulgated by the EPA and the U.S. Army Corps of Engineers re-defining  the regulatory definition of “Waters of the United States.” Recall that the Sixth Circuit earlier issued a nationwide stay of the implementation of the new rule, pending its determination that it has jurisdiction to hear challenges to this new rule. The regulatory definition of “Waters of the United States” is fundamental to the regulatory operation of  the CWA and those required to obtain a CWA permit will be watching the Sixth Circuit carefully.

Continue Reading ›

Posted
by

Subcontractor default insurance (SDI) was created more than twenty years ago. Despite its relatively recent vintage, SDI is now offered by multiple insurers and is quickly replacing traditional subcontractor payment and performance bonds as a go-to option on large-scale construction projects. SDI has many benefits that surety bonds don’t. We’ll be going into this in substantial detail at our Fourth Annual Subcontractor Default Insurance Forum that Pillsbury co-presents, along with our friends at Willis Towers Watson, in Scottsdale in May.

Continue Reading ›

Posted
by

On January 29, 2016, the Texas Supreme Court, in Railroad Commission of Texas v. Gulf Energy Exploration Corporation, unanimously reversed a decision of the Court of Appeals for the Thirteenth District (Corpus Christi) which had sustained the liability of the Texas Railroad texasflagCommission for the erroneous plugging of an abandoned offshore well, and remanded the matter for a new trial. Under Chapter 89 of the Texas Natural Resources Code, one of the Commission’s responsibilities is to protect Texas’ land and water from pollution by providing additional means to plug abandoned wells. Chapter 89 also provides a “liability defense” to those engaged in plugging operations in good faith.
The Texas Supreme Court ruled that the Commission was entitled to have the jury assess its good faith defense. Interestingly, the Texas Supreme Court also held that the “good faith” defense will also apply to Gulf Energy Exploration Corporation’s breach of contract claim against the Commission, and that the defense is not limited to tort actions.

Continue Reading ›

Posted
by

The Freedom of Information Act (FOIA), first enacted more than 40 years ago, governs the release of information to the public of data generated by and submitted to the federal government. A recent decision by a U.S. District Court in Washington, DC, Competitive Enterprise Institute v. Office of Science and Technology Policy, describes one of the most important exceptions that serves to restrict the release if internal government documents, the “deliberative process privilege.”The District Court discussed this exemption in connection with its review of the Information Quality Act (IQA) and statements made in a short White House video on global warming director of the OSTP appeared in a brief White House video in which the director of the Office of Science and Technology Policy (OSTP) asserted that there was a growing body of evidence linking the weather phenomenon known as the “Polar Vortex” to global warming. The District Court held that 47 pages of internal communications (mostly drafts) that preceded the issuance of a three page letter by the OSTP responding to the Competitive Enterprise Institute’s (CEI) concerns about the video were covered by this FOIA deliberative process privilege exemption.

Continue Reading ›