Today, Pillsbury attorneys James Lloyd, Vince Morgan, Adam Weaver and Tamara Bruno published their client alert titled USGS’s Increase of Texas’s Earthquake Risk Level: Commercial Real Estate and Insurance Implications. The Alert discusses the increase in seismic activity in the Fort Worth Basin and the likelihood that this increase will lead to a corresponding rise in the official earthquake risk level for the Fort Worth Basin when the United States Geological Survey (USGS) releases an updated earthquake hazard map in the coming months. This map and the USGS’s estimates of seismic risk play a crucial role in determining insurance costs, building codes and lenders’ insurance requirements.
New Court of Appeals “Arranger Liability” Superfund Ruling
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The U.S. Court of Appeals are encountering and deciding CERCLA (or Superfund) “Arranger Liability” cases in the wake of the Supreme Court’s 2009 decision in the case of Burlington Northern and Santa Fe Railway Co. v. United States, 556 U. S. 559 (2009). Earlier this year, the Fifth Circuit held, in the case of Vine Street LLC v. Borg Warner Corp., that CERCLA’s “Arranger Liability” for Superfund cleanup responsibility did not apply to most straightforward business transactions in which an intent to dispose of hazardous waste or hazardous substances in the guise of a business transaction could not be established. On March 20, 2015,a divided panel of the Fourth Circuit reached a similar conclusion in the case of Consolidation Coal Company v. Georgia Power Company, et al. The Court of Appeals affirmed the lower court’s ruling that granted summary judgment to Georgia Power Company in a cost recovery case involving the ongoing cleanup of the Ward Transformer Site, located in Raleigh, North Carolina.
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Removal of Arbitrator for Impartiality Doubts Under English Arb Act
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Today, Pillsbury attorney Ray Sweigart published his client alert titled Removal of Arbitrator for Impartiality Doubts under English Arb Act. The Alert discusses the English Court’s removal of an arbitrator under section 24 of the Arbitration Act 1996 in Sierra Fishing Company and others v Hasan Said Farran and others [2015] EWHC 140 (Comm).
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EAB Issues Significant Decision re Statute of Limitations and EPA Policy Statements
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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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GSA May Abolish the Price Reduction Clause
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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.
Failure To Present Expert Testimony Resulted In Dismissal
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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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Important New CWA Cases
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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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Supreme Court Decides 2 Important Administrative Law Cases
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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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DC Circuit Denies Challenge to DOI’s Outer Continental Shelf Leasing Program for 2012-2017
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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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Reality TV ~ CSLB Discussion Forum for Contractors
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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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