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A unanimous panel of the Illinois Appellate Court recently held that three insurers have a duty to defend any case in which the bare underlying allegations – if proved – would render their insured liable, regardless of extrinsic facts. This sweeping ruling confirms that the duty to defend is a form of “litigation insurance,” protecting the insured against the costs of being wrongly sued, however groundless the claims against it may be. The case is Illinois Tool Works Inc. and ITW Finishing LLC v. Travelers Casualty and Surety Company, et al.
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Today, Pillsbury attorneys Julia Judish, Rebecca Carr Rizzo and Keith Hudolin published their client alert titled The Legal Landscape Rapidly Changes for D.C. Employers. The Alert discusses how District of Columbia employers now face and are soon to face a number of new laws affecting a wide range of issues, including wage payments, recording of hours worked, pregnancy accommodations, concealed weapons in the workplace, and the use of criminal background checks and drug testing during the hiring process. While most of the changes impose new requirements on employers, emergency legislation passed by the D.C. Council on February 3rd also contained a win for employers by changing existing D.C. law that had previously required that employers keep records of hours worked by both exempt and non-exempt employees. Employers must be aware of these new requirements, some of which require employers to change their current practices, and should carefully review their employee handbooks and other policies to ensure timely compliance.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Julia Judish, Rebecca Carr Rizzo, or Keith Hudolin, the authors of this blog.

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Friday, the Texas Supreme Court issued a unanimous opinion in the case of Environmental Processing Systems, L.C. v. FPL Farming Ltd., reversing the Court of Appeals for the Ninth District of Texas’s finding that EPS had the burden of establishing an affirmative defense that it had the landowner’s consent, and that Texas recognizes a common law trespass cause of action for deep subsurface water migration. The environmental and property rights issues affected by deep subsurface wastewater disposal are important to the oil and gas industry as well local and state government permitting agencies and environmental groups.
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The Washington State Department of Labor & Industries (“L&I”) is in the process of updating its electrical examinations to the 2014 National Electrical Code® (NEC®) and current versions of Washington electrical laws (Ch. 19.28 RCW) and rules (Ch. 296-46B WAC). L&I expects the revised exams to be in place on July 1, 2015. If an applicants first attempt to pass an electrical administrator exam is on or after July 1, 2015, the examination will be based on the 2014 NEC® and current Washington electrical laws and rules. If the applicant is re-taking an exam on or after July 1, 2015, the applicant will be able to re-test using the 2008 version until your one year test cycle ends; those applicants who have not successfully passed the exam by June 30, 2016 will start a new testing session with the 2014 version.

Additional Resource: Washington State Department of Labor & Industries; Electrical Currents, Vol. 19 No. 2 (Feb. 2015)

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State contractor and tradesmen licensing laws, and the agencies responsible for issuing and regulating these licensees, vary across the nation. In California, the California Contractors State License Board issues licenses to general engineering contractors, general building contractors and specialty classifications for trades that require a license, including, by way of example only, electrical, warm-air heating, ventilating & air-conditioning (aka HVAC or HVACR), and plumbing. In some states, plumbing, electrical, and HVAC trades are licensed and regulated by separate agencies. Others states only require contractors to register. In other states, municipalities issue and regulate any required contractor’s licenses.

Below is a list of regulatory agencies across the nation that issue licenses (or require registration) with a link to their webpage(s) identifying the license classifications and trades subject to licensure (or registration). It does not identify all of the municipalities responsible for issuing and regulating contractors and tradesmen. It also does not include certification requirements, including for example, asbestos abatement certification, hazardous substance removal certification, electrician’s certification, or lead-safety certification, or permit requirements.
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The Washington State Department of Labor & Industries (“L&I”)Electrical Currents , Vol. 19 No. 2 (Feb. 2015) identifies legislative updates in 2015 that may be of interest to electrical contractors. None of the bills identified are sponsored by L&I:

House Bill 1315 – L&I’s summary of the bill: “Requires L&I to grant a variance from the allowed scope of work, upon application, to a specialty electrician, a master specialty electrician, or a specialty plumber under certain circumstances.”
House Bill 1375 – L&I’s summary of the bill: “Eliminates special immunities from prosecution for criminal trespass, whether those immunities have been legislatively granted to the government or to private persons or entities. This bill would compromise an inspector’s ability to gain access to ensure electrical work complies with state laws and rules, and require property owners to be present for an electrical inspection, which would significantly reduce the number of inspections that could be performed with current inspection staff.”
House Bill 1590 – L&I’s summary of the bill: “Requiring completion of an apprenticeship program to receive a journey level or residential specialty electrician certificate of competency.”
House Bill 1608 – L&I’s summary of the bill: “Addresses certified HVAC/refrigeration specialty electricians and certified appliance repair specialty electricians concerning replacement of household appliances.”
House Bill 1609 – L&I’s summary of the bill: “Exempts from the plumbing and electrical codes, minor or incidental work that does not require regulation for the protection of public health or safety.”
Senate Bill 5686 – L&I’s summary of the bill: “Removes the ability of the Electrical Board to hear appeals of decisions by the Office of Administrative Hearings. Decisions made by an administrative law judge would be a final order.”
Senate Bill 5281 – L&I’s summary of the bill: “Requires L&I to establish a 2,000 hour nonresidential security system specialty electrician certificate allowing a trainee to take the examination after 720 hours (or 90 days) of work experience and if successful, work alone installing these systems.”
Senate Bill 5282 – L&I’s summary of the bill: “Exempts from licensing requirements, and permit and inspection requirements under chapter 19.28 RCW, persons, firms, partnerships, corporations, and other entities for work limited to certain installations of security system wiring in one and two family dwellings.”

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On January 27, 2015, the U.S. District Court for the Southern District of West Virginia held that the waste water discharges of a mining operation in the coal mining areas were subject to a Clean Water Act (CWA) and Surface Mining Control and Reclamation Act (SMCRA) citizen suit. The District Court held that the defendant’s discharges violated its National Pollutant Discharge Elimination System (NPDES) permits by discharging “high levels of ionic pollution, as measured by conductivity” which caused or significantly and adversely affected the receiving stream’s aquatic ecosystem.

Although West Virginia has not promulgated any numeric values for this kind of pollution, the District Court found that the discharge violated the state’s “narrative water quality standards” that are incorporated in the NPDES and companion SMCRA permits. West Virginia’s narrative water quality standards are violated if wastes discharged from a surface mining operation “cause . . . or materially contribute to” (1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life” or (2) “[a]ny other condition . . . which adversely alters the integrity of the waters of the State.” W. Va. Code R. § 47-2-3.2.e, -3.2.i. The case is Ohio Valley Environmental Coalition, et al., v. Fola Coal Company, LLC.

The defendant is not entitled to a CWA permit shield defense, and a recent unpublished West Virginia Supreme Court ruling which apparently disregards the narrative water quality standards relied on by the plaintiffs, was not persuasive to the court.

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Industry representatives have complained that from time to time that EPA will enter into settlements of lawsuits brought by environmental interest groups that have the effect of excluding industry representatives from participating in the final settlement. Usually these lawsuits involve claims that EPA has failed to take a regulatory action–usually a new rule–in accordance with a statutorily-imposed deadline. The GAO was asked to investigate the procedures employed by EPA to settle such lawsuits.

Last December, the U.S. Government Accountability Office (GAO) released a report entitled, “Impact of Deadline Suits on EPA’s Rulemaking is Limited“. Several members of Congress expressed their concerns to the GAO that EPA’s practice of settling lawsuits by promising to conduct rulemakings when a statutory deadline has come and gone–principally in Clean Air Act matters–meant that the public had little or no opportunity to be involved in the development of significant rules. The GAO investigated the procedures employed by EPA and DOJ and concluded that the impact of this practice was negligible, and the process allowed the public to file comments during the pendency of the consent decree/settlement. The report was released as GAO-15-34 (December (2014).

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On January 27, 2015, the U.S. District Court for Minnesota granted summary judgment to EPA and two environmental groups defending EPA’s decision to release personal data submitted by a group of Concentrated Animal Feeding Operations (CAFO) farm facilities who were also applicants for Minnesota wastewater discharges. The plaintiffs argued that the release of this information was controlled by the Freedom of Information Act and that there is an exclusion protecting against the release of such personal data. They argued that they feared the loss of privacy, and that the release of this information promised to subject them to threats and harassment by groups and persons opposed to CAFO farm operations. The lawsuit was dismissed on standing grounds. a The District Court determined that in the age of the Internet, their personal data was already freely available, and so there was no standing. A 1989 Supreme Court decision, U.S. Department of Justice, et al., v. Reporters Committee For Freedom of the Press, et al., 489 U.S. 749, on which the plaintiffs relied, was distinguished primarily because of the changes to information gathering and collection made by the Internet. The case is American Farm Bureau Federation and National Pork Producers Council v. EPA.

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The Office of Federal Contract Compliance Programs (OFCCP) recently announced the publication of a Notice of Proposed Rulemaking (NPRM) to revise and replace its Sex Discrimination Guidelines. The NPRM would rescind OFCCP’s guidelines on federal contractors’ obligations not to discriminate on the basis of sex under Executive Order 11246, as amended, and replace them with updated regulations. This update will be the first in more than four decades. It is expected to reflect present-day workplace realities and align OFCCP’s guidelines with current law under Title VII of the Civil Rights Act of 1964. The proposed amendments will address compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family caregiving discrimination, among other topics.

The NPRM will be published in the Federal Register on January 30, 2015, and the public will have until March 31, 2015 (60 days) to provide comments.

Additional Sources: US Labor Department proposes critical updates to sex discrimination guidelines for federal contractors and subcontractors; OFCCP Proposes Updated Sex Discrimination Rule