On September 30, 2015, the U.S. District Court for Wyoming granted requests for a preliminary nationwide injunction against the implementation of the Department of the Interior’s (DOI) Bureau Of Land Management (BLM) rules that apply to hydraulic fracturing on Federal and Indian lands. The lead case is State of Wyoming v. U.S. Department of the Interior.
The Washington State Building Code Council (SBCC) adopted an emergency rule, WAC 51-54A-3800, effective July 1, 2015, to specify requirements amending the International Fire Code dealing with marijuana processing and extraction facilities stemming from these facilities’ use of flammable and combustible liquids for the liquid extraction process. These rules, along with other rulemaking proposals are open for public comment on the SBCC rulemaking page of their website, and comments are due by close of business on October 23, 2015.
The Washington State Department of Labor & Industries (L&I) has identified common corrections required by electrical inspectors. It reported that out of the 185,878 inspections made for electrical contractors last year 18% required corrections and re-inspections and, in its own words, “remarkably” 20% of all electrical contractors were responsible for 80% of the work requiring correction and re-inspection. L&I also cautioned that Section 1928.361 of the Revised Code of Washington (RCW 19.28.361) makes the installer – contractor and electrician – personally responsible and liable for any injury or damage to a person or property for any defect in the electrical installation.
On September 29, 2015, the U.S. Court of Appeals for the DC Circuit issued a unanimous ruling affirming the district court’s rejection of a lawsuit filed by the Sierra Club against the U.S. Army Corps of Engineers in which the Sierra Club argued that the federal government was obliged to conduct a National Environmental Policy Act (NEPA) analysis of the entirety of an 580 mile oil pipeline constructed by Enbridge Pipelines (FSP), LLC. The case is Sierra Club v. U.S Army Corps of Engineers, et al.
As a result of California Senate Bill (SB) 854, all contractors have been required since April 1, 2015, to register with the California Department of Industrial Relations (DIR) to be awarded a public works contract, even if the project did not go out to bid. A mandatory renewal deadline is approaching for licensees who work on public works projects. Contractors whose registration with the DIR expired June 30, 2015, and have ongoing public works projects or plan to bid on new ones, must pay a$300 renewal fee before October 1, 2015, or face an additional $2,000 late penalty after that date. If you are not sure whether your public works registration with DIR is still active, you can check the active contractor registration search tool to locate and confirm your registration. And, the CSLB noted that if you were registered last year and have neither bid on nor worked on any public works projects on or after July 1, 2015, you can renew for this fiscal year without incurring a penalty.
Additional Source: DIR, Public Works Contractor (PWC) Registration; CSLB Urges Public Works Contractors to Renew Dept. of Industrial Relations Registration before October 1 or Pay Hefty; DIR Frequently Asked Questions
UPDATE: OSHA has extended its temporary enforcement policy through March 8, 2016, only for employers engaged in residential construction work. OSHA had extended the temporary enforcement policy through January 8, 2016.
In response to industry participants’ request for an extension of the effective date of the Confined Spaces in Construction standard published on May 4, 2015 and in effect on August 3, 2015, OSHA has confirmed that, although it will not delay the effective date it will postpone full enforcement of the new standard for 60 days from the effective date of August 3, 2015 to October 2, 2015 if the employer is “making good faith efforts to comply” with the new standard.
Pillsbury attorneys Julia Judish and Rebecca Rizzo have published their client alert titled The Changing Compensation Landscape for Government Contractors, New Executive Order Mandates Paid Sick Leave for Employees of Government Contractors, and Department of Labor Issues Final Rule on Contractor Pay Transparency. The Alert discusses (1) President Obama’s Executive Order issued on Labor Day that will require federal contractors and subcontractors to provide their employees working on covered government contracts with up to 7 days of paid sick leave per year, effective for federal contracts entered into on or after January 1, 2017, and (2) the Department of Labor’s Final Rule on Executive Order 13665 issued on September 11, which amends Executive Order 11246 to prohibit “pay secrecy policies and actions” for government contractors and subcontractors, effective January 11, 2016.
The U.S. Army Corps of Engineers often exercises its Clean Water Act (CWA) Section 404 permitting authority through administrative “jurisdictional determinations”, in which the agency usually determines whether a proposed project involves the deposit or disposal of dredge and fill material into wetlands deemed to be “waters of the United States” subject to the jurisdiction and control of the Corps of Engineers. These determinations can be controversial, particularly when the Corps of Engineers’ authority is based upon laws, rules and administrative practices that may not be clear. Recently, two U.S. Courts of Appeals have issued conflicting rulings with respect to the issue whether the Corps of Engineers jurisdictional determinations are “final agency rules” that can be promptly reviewed in federal court in the wake of the Supreme Court’s unanimous decision in the 2012 case of Sackett v. EPA, 132 S.C.t. 1367 (2012). The two rulings are Belle Co. LLC v. US Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), and Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F. 3d 994 (8th Cir. 2015). These rulings take on added significance because of the new rules issued by EPA and the Corps of Engineers redefining the concept of “waters of the United States”, which is the linchpin of federal regulatory power under the CWA. These rules were made effective on August 28, 2015, and many challenges have been filed in both federal district courts and the Court of Appeals.
On September 21, 2015, the U.S. Court of Appeals for the Seventh Circuit issued an important Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), cost recovery lawsuit ruling relating to a contractual release of liability that pre-dated CERCLA. The case is The Peoples Gas Light and Coke Company v. Beazer East, Inc.
Pursuant to his authority under California Government Code § 8620, Governor Brown declared a state of emergency on September 11 in Amador and Calaveras Counties, and on September 13 for Lake and Napa Counties for the wildfires that started in early September. Contractors beware that Section 7028.16 of California’s Contractors’ State License Law, Business & Professions Code §§ 7000 et seq., expressly prohibits engaging in the business or acting in the capacity of a contractor without having an appropriate license when offering or performing repairs to a residential or nonresidential structure for damage caused by a natural disaster. A violation of Section 7028.16 is punishable by a fine up to $10,000 and/or imprisonment for up to 16 months in a state prison.
Additional Source: Contractors State License Board Offers Resources for Northern California Wildfire Victims; State Tax Relief for Victims of the Wildfires in Amador, Calaveras, Lake, and Napa Counties
