On March 13, 2015, the EPA’s Environmental Appeals Board (EAB) issued an important ruling in a Toxic Substances Control Act (TSCA) enforcement matter. The case is In re: Elementis Chromium, Inc., TSCA Appeal 13-03.
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Yesterday, Pillsbury attorneys John Jensen published their client alert titled GSA May Abolish the Price Reduction Clause. The Alert discusses the U.S. General Services Administration (GSA) recently issued proposed rule that could abolish the long-standing price reduction clause (PRC) from the GSA Schedule program. GSA is proposing to eliminate the clause and to use, instead, the submission of “transactional data reporting” to help achieve its goal of fair and reasonable pricing on all orders. The rule would require contractors to report transactional data for orders placed against GSA Federal Supply Schedule (FSS) and other GSA contracts. The proposed rule is designed to improve GSA’s ability to conduct meaningful price analysis and more efficiently and effectively validate fair and reasonable pricing. It is also intended to reduce the burden on contractors imposed by the current GSA PRC.
On March 13, 2015, the U.S. Court of Appeals for the First Circuit affirmed the dismissal of a lawsuit seeking recovery of funds from the president of Environmental Careers Organization (ECO), a defunct Massachusetts non-profit company whose business was to place interns with the Environmental Protection Agency (EPA). ECO received compensation from the EPA for its costs of placing students in agency internships. EPA audited the accounts of ECO and then sought recovery of more than $6 million from it, forcing ECO into bankruptcy.
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On March 10, 2015, the U.S. Court of Appeals for the Fourth Circuit issued an unpublished opinion in Precon Development Corporation, Inc., v. U.S. Army Corps of Engineers. For several years, Precon has been contesting the Corps’ assertion of Clean Water Act (CWA) jurisdiction over Precon’s planned commercial and residential development in Chesapeake, Virginia. At issue is the jurisdictional status of 4.8 acres of wetlands that Precon wants to fill in: Is this land subject to the Corps’ permitting authority under Section 404 of the CWA because the wetlands are “water of the United States” on the basis of Justice Kennedy’s “significant nexus” test, as explicated in the 2006 Supreme Court case of Rapanos v. United States, 547 U.S. __ (2006)?
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Without dissent, but with strong concurring opinions, the Supreme Court has decided two cases that could, over time, significantly affect the relationships between the federal government and the regulated community. In the first case, the Court was asked to review the distribution of regulatory powers between Amtrak, which operates many railroad operations, and its rail competitors, resulting from a transportation law enacted in 2008. In enacting this law, the question is whether the Congress illegally delegated some of its regulatory powers to Amtrak. The Court ruled that it did not, but the case was returned to the lower court to decide some important constitutional issues. In the second case, the Court held that federal agencies, when they issue interpretive rulings, are not required to follow the standard notice and comment procedures that govern federal rulemaking, even though these interpretive rulings may have a very important effect on the parties that it regulates. While legal, the practice clearly troubles some of the Justices.
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In the case of Center for Sustainable Economy v. Sally Jewell and the Bureau of Ocean Energy Management, decided on March 6, 2015, the U.S. Court of Appeals for the District of Columbia Circuit denied the Center’s petition to review the Department of Interior’s (“DOI”) latest proposed leasing program. Section 18 of the Outer Continental Shelf Lands Act requires the Department to balance competing economic, social and environmental values in determining when and where to make offshore leases in federal waters available. According to the Center, the DOI’s actions fell short of complying with the law’s mandate and, in particular, some of the economic analysis.
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In the fall of 2014, the California Contractors State License Board (CSLB) launched a new forum — CSLB TV — for engaging in discussions with contractors about issues and challenges that affect the construction industry. The first event, an interactive webinar on September 19, 2014 titled Doing It Right: HVAC Permits & Title 24 Energy Regulations Webinar, discussed issues and challenges in the HVAC industry related to California Energy Commission Title 24 energy efficiency regulations and the permitting process with local building divisions. Topics for future CSLB TV are being discussed. To submit a webinar topic recommendation, email social@cslb.ca.gov.
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Recently it was reported that Shanghai WinSun Decoration Design Engineering Co. has used 3D printing technology to create a 5-story, 1,110 square meters villa using construction waste. Pictures of the villa are included in the articles Chinese firm 3D-prints 5-story house using construction waste ‘ink’ and Exclusive: WinSun China builds world’s first 3D printed villa and tallest 3D printed apartment building. WinSun’s website also features more pictures of its 3D projects.
Today, my colleague Alex Tomaszczuk and I published our client alert Lining Up to Protest Bid — protest dismissed as company fails to allege it was “next in line” for award. The Alert discusses the U.S. Court of Federal Claims’ February 10, 2015 decision in Universal Marine Company, K.S.C. v. United States, No. 14-1115C, dismissing the bid protest complaint filed because the protester was not “next in line” for award of the contract and, therefore, lacked standing to protest. As noted in the Alert, this decision serves as a critical reminder for bid protesters of the necessity of demonstrating, through a carefully crafted complaint, that they were “prejudiced” by the agency’s actions.
Wetlands mitigation banking agreements are subject to the rules of the U.S. Army Corps of Engineers (the Corps); they can serve a useful public purpose by assisting with the restoration and preservation of waterways subject to the Clean Water Act.
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