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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

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Tuesday, Pillsbury attorneys Matt Morrison and Bryan Stockton published their client alert Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom. The Alert discusses two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption, decisions that have surprised many CAA litigators. The outcome in both Bell v. Cheswick Generating Station, 734 F. 3d 188 (3d Cir. 2013), and Freeman v. Grain Processing Corporation, 848 N.W.2d 58 (Iowa 2014)–as well as the Supreme Court’s recent denial of certiorari in both cases–was unexpected to many because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law. Stationary sources should be aware that some plaintiffs may be more inclined to attempt to raise state law tort claims, regardless of ultimate merit.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matt Morrison or Bryan Stockton, the authors of this blog.

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Monday, we published our client alert A Boost for Business: Time to Reaffirm or Secure Terrorism Insurance. The Alert discusses H.R. 26, a bill signed into law on January 12, 2015 by President Obama enacting the Terrorism Risk Insurance Program Reauthorization Act of 2015 (TRIPRA of 2015). TRIPRA provides a federal backstop for insurance against risks of terrorism and extends until 2020 the Terrorism Insurance Program established under the Terrorism Risk Insurance Act (TRIA) of 2002, which expired at the end of 2014. The measure lifts a cloud of uncertainty that was proving difficult for property owners, especially in major metropolitan areas, as there was insufficient capacity in the private insurance market to meet their needs.

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UPDATE: On May 14, 2015, Florida Governor Rick Scott signed Senate Bill 456 into law. This new law is effective July 1, 2015.

On January 22, 2015, Florida Senate Bill 456 was introduced, proposing to revise the methods by which a labor pool may pay day laborers. If signed into law, Senate Bill 456 would permit a labor pool to compensate day labors, paying them in cash, using a commonly accepted negotiable instrument that is payable in cash, on demand at a financial institution, and without discount, using a payroll debit card, or by electronic fund transfer to a financial institution designated by the day laborer.
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The Sixth Circuit Court of Appeals has ruled that ICG Hazard, LLC’s Clean Water Act (CWA) general permit defense, located in the CWA at 33 U.S.C. 1342(k), shielded the mining company from a CWA enforcement lawsuit filed by the Sierra Club. The case is Sierra Club v. ICG Hazard, LLC, decided January 27, 2015. Relying on the Fourth Circuit Court of Appeal’s 2001 ruling in Piney Run Preservation Association v. County Commissioners, 268 F.3d 255 (4th Cir. 2001), a divided panel of the Court of Appeals held that the general permit issued pursuant to delegated authority by the Kentucky Division of Water shielded ICG Hazard from this lawsuit. The pollutant in question is selenium, and the Court of Appeals held that the agency was aware of the potential for discharges from ICG Hazard’s surface mining operations. The Court of Appeals also held that the permit shield applies to both individual and general National Pollutant Discharge Elimination System (“NPDES”) permits. Moreover, the provisions of the CWA presumably trump contrary provisions of Surface Mining Act.
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