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Yesterday, Pillsbury attorneys Matt Morrison and Bryan Stockton published their advisory Three Obstacles to EPA’s O3 Rule: Industry Opposition, Implementation, and Congressional Oversight. The Advisory discusses the EPA’s recent proposal to revise the national air quality standard for ozone, the key pollutant in smog and regional haze, and the complex issues the EPA must navigate as it prepares to finalize the rule by October 1, 2015.

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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Last week, a divided panel of the DC Circuit Court of Appeals vacated two provisions of the 2008 ozone standards on the ground that they exceed the EPA’s authority under the Clean Air Act. The two provisions extended the deadlines for some air quality regions to attain the 2008 ozone standards and revoked what is known as the “transportation conformity requirements”. Judge Randolph, in dissent, argued that the majority was, in effect, substituting its policy judgment for that of the EPA, and failed to discuss exactly how EPA and the states are expected to implement this decision, which he considers to be “a mistake in judicial analysis”. The case is NRDC v. EPA, et al.

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Recently, the National Labor Relations Board (NLRB), in a 3-2 decision, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO. Cases 21-CA-095151, 21-RC-091531, and 21-RC-091584, considered the right of employees under Section 7 of the National Labor Relations Act (Act) to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment. Ruling on this question, the NLRB concluded that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” In doing so, it overruled the NLRB’s divided 2007 decision in Register Guard, 351 NLRB 1110 (2007), to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes because its “analysis fails ‘to adapt the Act to changing patterns of industrial life'”; the NLRB majority in Register Guard accepted the employer’s contentions there that an email system is analogous to employer-owned equipment and that prior cases had established that employers could broadly prohibit nonwork use of such equipment. It further found it appropriate “to apply our new policy retroactively.
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Recently, Pillsbury attorneys Chris Wall, Steve Becker, Nancy Fischer, Aaron Hutman and Stephanie Rohrer published their advisory titled A New U.S. Course for Cuba Relations: What Does It Mean for Business? The Advisory discusses President Obama’s unexpected announcement signaling a “new course” for Cuba after more than 50 years of comprehensive U.S. sanctions, and possible opportunities for certain exports markets including telecommunications, building materials, agricultural equipment, and certain goods for use by Cuban entrepreneurs.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Chris Wall, Steve Becker, Nancy Fischer, Aaron Hutman or Stephanie Rohrer, the authors of this blog.

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UPDATE: At its February 20, 2015 Legislative Committee and Enforcement Committee meeting, the California Contractors State License Board is expected to provide an update and to consider several legislative proposals. The meeting that is open to the public is to commence at 9:30 a.m. PST at the CSLB Headquarters, John C. Hall Hearing Room, 9821 Business Park Drive, Sacramento, CA 95827, and at the teleconference location, 134 West 168th Street, Gardena, CA 94248.

Today, the California Department of Industrial Relations (DIR) released its 2014 Legislative Digest, which includes, among other things, an overview of new laws related to the work of DIR and its divisions, which include the Labor Commissioner’s Office, Cal/OSHA, the Division of Workers’ Compensation and the Division of Apprenticeship Standards.
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In May 2012, a catastrophic flood inundated large sections of Nashville, resulting in many lawsuits being filed against the U.S. Army Corps of Engineers with respect to the Corps’ operation of the Old Hickory Dam. The dam is located on the Cumberland River, and water that flows through this river and the Old Hickory Dam eventually reaches Nashville. The several lawsuits that followed were consolidated, and the plaintiffs included A.O. Smith Corporation, Gaylord Enterprises, the Opryland Hotel, the Grand Old Opry, the Gibson Guitar Corporation, other hotels, businesses and insurance companies.
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Wednesday, U.S. District Judge David Hittner issued a long (82 pages) and complex ruling rejecting all of the claims for relief requested by Environment Texas Citizen Lobby, Inc. and Sierra Club from ExxonMobil Corporation, ExxonMobil Chemical Company and ExxonMobil Refining and Supply Company. In reaching its decision, the Court conducted a 13-day, non-jury trial in which the plaintiffs requested a declaratory judgment, penalties of $643,000,000 and the appointment of a Special Master to oversee Exxon’s compliance with the injunction that was requested with respect to the huge petrochemical complex operated by Exxon in Baytown, Texas.
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Yesterday, the California Contractors State License Board Chairman David Dias announced the selection of Chief Deputy Registrar Cindi A. Christenson to serve as the board’s new Registrar of Contractors, effective January 1, 2015. Her qualifications include having served as the CSLB’s second in command since 2009. Dias also noted that “She also will have the distinction of serving as CSLB’s first female Registrar of Contractors, among the known 15 executives who have served in this position since 1929.” Congratulations Ms. Christenson!

Additional Sources: Sac Bee, Christenson becomes first female to hold key exec post with state contractors’ board; California Looking For Next Registrar of Contractors; California CSLB Registrar of Contractors Announces Departure

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The Sacramento Business Journal in Arena builders hitting some — but not all — targets for local and small-business contracts reports on the progress of the Sacramento Entertainment and Sports Center (ESC), including confirming that the “oversight committee says the Sacramento Kings are exceeding commitments to hire local companies to build the downtown arena.” For additional information on the “World-Class Home of the Sacramento Kings”, check out the Sacramento Kings ESC website. Recent postings include an update on the ESC demolition/construction (Dec. 16, 2014), and notice of a March 6 Subcontractor Outreach Meeting. Contractors Bid Opportunity Information and renderings of the ESC are also posted. For additional information, also check out the City of Sacramento’s Arena News. The ESC is expected to be completed by October 2016 in time to open for the 2016-17 NBA season.

Additional Source: Demolition For Sacramento Kings New Arena Scheduled To Commence By Month End

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A report titled Validity of Caltrans’ Environmental Hydrogen Embrittlement Test on Grade BD Anchor Rods in the SAS Span dated December 2, 2014 prepared by Yun Chung, Materials Engineer (Retired), purportedly for Steve Heminger, Chair, Toll Bridge Program Oversight Committee recently surfaced. Seven other professors, consultants and engineers purportedly reviewed the report and provided comments, including Robert G. Bea, Ph.D., Russell Kane, Ph.D., Harold J. Mantle, P.E., Charles J. McMahon, Jr., Sc.D., Cory Padfield, P.E., Patrick Pizzo, Ph.D., and Pierre R. Roberge, Ph.D., P.E. The Chung Report responds, in part, to Caltrans’ conclusion “that all the 2,210 HDG BD rods in the SAS are “safe” as installed from future EHE failures.” The San Francisco-Oakland Bay Bridge Self-Anchored Suspension Bridge Evaluation of the ASTM A354 Grade BD Rods was issued on September 30, 2014.

In part, the Chung Report concludes that “This review revealed that Caltrans’ EHE test protocols and data interpretation are both problematic and unscientific and that their conclusions as to the integrity of the [self-anchored suspension span (SAS)] could not be supported.” Section 8.0 of the Chung Report sets forth 12 conclusions and recommendations, including that “Caltrans’ conclusions and recommendations in their September 2014 report on the A354 BD Rod Evaluation are incorrect and will not resolve the concerns about possible hydrogen embrittlement (HE) failures of hot dip galvanized (HDG) Grade BD rods that are critical to the structural integrity of the self-anchored-suspension (SAS) span.” Among other things, the Chung Report recommends that Caltrans should “adopt the strategy of using HDG BD rods that are metallurgically not susceptible to EHE failures, for example those with peak hardness of 32 – 35 HRC maximum” and “identify HDG BD rods in the SAS that are susceptible to EHE failures and replace them with new HDG BD rods or equivalent rods not susceptible to EHE failures.” As for monitoring, the Chung Report recommends that Caltrans “concentrate on the tower base anchor rod performance because they are not replaceable and their failures would be critical to the SAS structural integrity…. It may take years but it is difficult to predict the timeframe of EHE failures. Caltrans should develop a risk analysis of the tower base anchor rod performance.”

Additional Source: The Sacramento Bee, Independent report calls Bay Bridge Tests ‘unscientific,’ ‘erroneous’ (Dec. 2, 2014).