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The Indianapolis Department of Code Enforcement (DCE), which is responsible for licensing persons and business organizations engaged in construction activity in the Consolidated City of Indianapolis, Marion County, is offering a new electronic submittal option for contractors’ license renewal applications.

Indianapolis DCE’s contractor license renewal process is as follows:

  • Email your renewal application, insurance certificated and bond to DCE
  • DCE staff will review your renewal application, update your information and add the appropriate fees to your contractor’s license ~ if additional information is required, you will receive an email identifying the additional information that is needed to process your renewal application
  • Once its review of your renewal application is complete, you will receive an email from the DCE confirming that it is ready to re-new your license ~ the title of the email will be “Your License is Ready to Re-Issue” and it will include a link to the DCE website where you may pay the renewal fee
  • You may pay the renewal fee online with a credit/debit card or eCheck
  • After you pay the renewal fee, you will receive an email with your license card attached

This new process is expected to streamline contractors’ license renewals and to avoid licensees having to go into a DCE office to renew their contractors’ licenses.

If you have questions, contact the DCE or call (317) 327-1291.

Additional Resource: Indianapolis Department of Code Enforcement, Contractor License

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On October 6, 2014, the U.S. Court of Appeals for the Eleventh Circuit issued its ruling in the case of Adinolfe, et. at. v. United Technologies Corporation. The Court of Appeals reversed the decision of the lower court to dismiss, with prejudice, two toxic tort cases, involving hundreds of homeowners, at the pleading stage. United Technologies Corporation (UTC) is responsible for the operations of Pratt & Whitney, which operated an aircraft and rocket engine manufacturing plant that the plaintiffs allege released large quantities of toxic materials that migrated through groundwater to the properties of the plaintiffs, damaging their properties and even causing personal injuries.

The District Court presiding judge used a “Lone Pine” order which is used to manage discovery to require the plaintiffs in mass tort cases to provide prima facie factual support, including expert testimony, for their claims or run the risk of having those claims dismissed. See Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507, at *3-4 (N.J. Sup. Ct. Law Div. Nov. 18, 1986). The Court of Appeals decided that a Lone Pine order should not be used as a pre-discovery case management tool before the District Court judge rules on the legal sufficiency of a complaint, and therefore the decision to dismiss must be reversed.

Among the matters reviewed by the Court of Appeals was the District Court’s conclusion that the plaintiffs could not state a claim without alleging that the contamination on their property exceeds the Florida numerical regulatory safe drinking water standard. UTC argued that under Florida law, only contamination above the applicable regulatory standard is actionable, and cited a 2005 decision of a Florida intermediate state appeals court. However, the Court of Appeals held this was an erroneous statement of Florida law: “In sum, while the applicable regulatory standard may be instructive for a trier of fact as evidence of what the government deems safe for the public, it does not amount to an all-purpose benchmark for determining as a matter of law how much one can reasonably contaminate another’s private property, much less a threshold issue that plaintiffs must preemptively address at the pleading stage to state tort claims under Florida law”. The Court of Appeals noted that several courts have ruled that pollution must exceed the relevant regulatory levels to be actionable, but many others have not.

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Illinois Governor Pat Quinn recently signed into law Senate Bill 3023 (Public Act 98-764, amending the Illinois Mechanics Lien Act, 770 ILCS 60/ et seq., to provide protection against subordination of mechanics liens on Illinois construction projects. S.B. 3023 makes an express or implied agreement to subordinate a mechanic’s lien, where the agreement is in anticipation of and in consideration for the awarding of a contract or subcontract to perform work or supply materials for an improvement upon real property against public policy and unenforceable, except where the agreement to subordinate a mechanic’s lien to a mortgage lien that secures a construction loan if that agreement is made after more than 50% of the loan has been disbursed to fund improvements to the property. The new law was effective July 16, 2014. This new law represents the culmination of the Illinois legislative efforts over the past few legislative sessions to provide further protection to mechanics lien claimants.

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Clients call from time to time with questions about liens that have been filed on their property, or about liens that they want to file. The questions follow a pattern. What is the deadline to file a lien? What about foreclosing? Can a lower tier subcontractor file a lien? Does the lien claimant have to file a preclaim notice? I got one of these questions recently and sent the in house attorney a card stock printout of our quick lien reference chart for the three jurisdictions closest to my office: Virginia, DC, and Maryland. She found it so useful that she put it on her bulletin board in her office.

Given how useful most clients find this information, we decided to post it. You can see it to the right under the “Resources/Links” tab. Our California construction lawyers prepared a similar chart a couple of years ago when California revamped its lien laws. They are going to convert that into a format that looks like the VA/DC/MD one. And then we’ll also prepare one for the northeast, where our New York area construction lawyers frequently answer similar questions.

So, check back for these quick reference charts. We think you’ll find them useful.

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Effective August 19, 2014, New Jersey Senate Bill 2363 went into effect, requiring contractors required to register under the Contractors’ Registration Act, N.J.S.A. §§ 56:8-136, et seq. — home improvement contractors — to wear a state-issued identification badge “on the upper left corner of his torso when the contractor is performing, or engaging, or attempting to engage in the business of selling home improvements” at all times on the job. The badge includes a color photograph of the employee’s face along with his/her name, and the contractor’s registration number and business name. A new badge is required every six years. Governor Chris Christie signed into law S.B. 2363 on August 19, 2013. The bill was reportedly prompted by fears of potential scams on Superstorm Sandy victims. It is believed that requiring contractors’ employees to wear these badges will add another layer of protection against fraud.

New Jersey isn’t the only state that requires certain contractors’ employees to wear badges. The Washington State Department of Labor & Industries October 2014 Electrical Currents newsletter reminds all electricians and trainees that they are required to possess, wear and visibly display their certificates. Washington’s Administrative Code WAC §§ 296-46B-940 and 296-46B-942 require all electricians and trainees to “possess, wear, and visibly display on the front of the upper body, a current valid [certificate].” WAC 296-46B-940(3) further provides that “[t]he certificate may be worn inside the outer layer of clothing when outer protective clothing (e.g., rain gear when outside in the rain, arc flash, welding gear, etc.) is required. The certificate must be worn inside the protective clothing so that when the protective clothing is removed, the certificate is visible. A cold weather jacket or similar apparel is not protective clothing. The certificate may be worn inside the outer layer of clothing when working in an attic or crawl space or when operating equipment (e.g., drill motor, conduit threading machine, etc.) where wearing the certificate may pose an unsafe condition for the individual.” “The certificate must be immediately available for examination at all times.” It is believed that requiring the visible display of the certificates while performing work “allows the public, customers, and other workers to have the knowledge that properly certified persons are the ones doing the work.” In its newsletter, electricians and trainees are encouraged to “Wear your certificate with pride – you earned it!”

In California, the Contractors State License Board issues a “pocket license” and encourages consumers to not only confirm that the contractor is properly licensed but to review the contractor’s pocket license to confirm that the name on the pocket license is the same as the name the contractor originally provided. Like New Jersey, California and other states are acutely aware that homeowners are most vulnerable to fraud by unlicensed contractors after a natural disaster. In California, these illegal operators face serious prison time if caught working or trying to get contracting work over $500 in a state-declared emergency area. California Business & Professions Code § 7028.16 provides that: “A person who engages in the business or acts in the capacity of a contractor, without having a license therefor, in connection with the offer or performance of repairs to a residential or nonresidential structure for damage caused by a natural disaster for which a state of emergency is proclaimed by the Governor pursuant to [California Government Code § 8625], or for which an emergency or major disaster is declared by the President of the United States, shall be punished by a fine up to [$10,000], or by imprisonment … for 16 months, or for two or three years, or by both that fine and imprisonment, or by a fine up to [$1,000], or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”

 

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Effective January 1, 2015, all contractors bidding on or performing work within the City of Shasta Lake, California involving connects to or modifications of the City of Shasta Lake’s potable (fit or suitable for drinking) water distribution system will be required to have and to maintain a Water Distribution Operator, Grade 2 certification. This requirement applies to both work performed on the City of Shasta’s system under contract with the City of Shasta and to work for a private developer or property owner. If you have questions, contact Jeff Tedder, City Engineer, 530-275-7423.

Examples of work that require a certification include, but are not limited to:

  • Water distribution or transmission main installation, extension, or replacement
  • Water main fitting, valve, or fire hydrant installation or replacement
  • Miscellaneous work involving depressurizing existing water mains for any reason

Under the regulations adopted in January 2001, becoming certified is a two-step process. The applicant submits an initial application and filing fee to take the required examination. This application will be evaluated to determine if the applicant meets the educational requirement. Once that initial application has been approved, the applicant will be permitted to take the examination. If the applicant passes the examination, he/she will have 3 years (from the date of the exam) to submit the second application and filing fee, and to obtain the certification. The second application is evaluated for the experience portion of the certification requirement. If the applicant has fulfilled the experience requirement, he/she will be issued a certificate; if the applicant has not fulfilled the experience requirement, he/she will have 1 year (from the date the second application was submitted) to obtain the required experience.

Contractors are cautioned that the certification process takes several months due to exam scheduling requirements. Distribution exams are offered twice a year in March and September and the final filing date for the March exam is January 1 and the final filing date for the September exam is July 1; and treatment exams are offered twice a year in May and November and the final filing date for the May exam is March 1 and the final filing date for the November exam is September 1.

For additional information on the certification process, check out the California State Water Resources Control Board’s Drinking Water Treatment & Distribution System Operators resource webpage, which includes information on continuing education, training and guidance, exam information, operator certification information (including the regulations), and the treatment exam application and distribution exam application.

The Drinking Water Treatment and Distribution System Operator Certification Program is located at 1001 I Street, 17th Floor, Sacramento, California, 95814. For general information or inquiries, contact the Operator Certification Program at:

Operator Certification Program – Drinking Water (OpCert)
State Water Resources Control Board P.O. Box 944212 Sacramento, CA 94244-2120 Telephone: (916) 449-5611 Fax: (916) 449-5654

Additional Resource: City of Shasta Lake, California

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The celebrated case of Mingo Logan Coal Co. v. EPA was returned to the U.S. District Court of the District of Columbia after the Court of Appeals reversed the District Court’s ruling that EPA had illegally invalidated a Army Corps of Engineers (“Corps”) 404 permit issued to Mingo Logan’s proposed coal mining operations in West Virginia. On March 14, 2014, the Supreme Court rejected any appeal of the DC Circuit’s opinion, which is reported at 714 F. 3d 608. The District Court completed its review of the remaining APA issues and on September 30, 2014, ruled that EPA had broad authority under the law to veto a Corps permitting decision.

Mingo Logan requires Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits to conduct coal mining operations at the Spruce No. 1 Mine in West Virginia. The permit application process was initiated by Mingo Logan’s predecessor in 1998, and the State of West Virginia issued an NPDES permit to Mingo Logan pursuant to its delegated CWA Section 402 authority, and the Corps issued a CWA 404 permit in 2007. The operations triggered opposition because of the perceived consequences of “mountain fills” in West Virginia and their impact on navigable waters and wildlife in the area. Two years later, EPA asked the Corps to revoke or modify its permitting action, but the Corp refused to do so. EPA accordingly invoked its authority under CWA Section 404(c) to withdraw the disposal sites that were designated in the Corps permit. In 2011, EPA completed its action to withdraw theses designated disposal sites. Mingo Logan sued EPA, and the District Court agreed with its argument that EPA acted too late, a ruling the Court of Appeals reversed in view of the plain language of the statute.

The District Court has now reviewed the remaining APA arguments, in particular whether EPA’s determination that discharges permitted under the 404 permit would cause unacceptable adverse environmental impacts was arbitrary and capricious. The District Court held that EPA’s determination was reasonable, supported by the record, and based on considerations within EPA’s purview. The District Court noted that EPA had continually expressed its concern about the impacts of the proposed discharge while the permit was under review by the Corps. It also held that an email by an EPA official to Mingo Logan that the agency had no interest in pursuing the matter any further after the Corps acted could be disregarded since this kind of statement could not bind the agency. The agency was always free to change its mind, and the email was not the product of a formal legal process requiring APA compliance to do so. While the District Court was critical of EPA’s argument that the proposed discharge would likely harm an endangered species that had never been seen in the area of the proposed coal mining operation, there were plenty of other species that could be harmed.

Finally, the District Court rejected the argument that EPA’s concerns about water quality somehow invaded the State’s regulatory sphere. Under the CWA, West Virginia is given the authority to make water quality rules and designations under CWA 401. EPA’s concerns about downstream water quality were authorized by other provisions of the CWA, and indeed, the agency is not required to consider West Virginia’s water quality determinations at all when it exercises its veto power under CWA Section 404(c). In the District Court’s view, in these circumstances, EPA can impose even stricter water quality standards than those required by the State.

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On September 30, 2014, the U.S. District Court for the District of Columbia rejected a challenge to the decision of the U.S. Fish and Wildlife Service (FWS) to withdraw a proposed listing of the Dunes Sagebrush Lizard, a species found in many oil and gas producing areas, as an endangered species under the Endangered Species Act. The case is Defenders of Wildlife, et al. v. Jewell. The District Court held that the decision of the FWS was lawful, and comported with the requirements of the ESA and the FWS’ and National Marine Fisheries Service’s (NMFS) 2003 Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) for the Evaluation of Conservation Efforts When Making Listing Decisions. Of particular importance were three conservation mechanisms–the BLM’s Resource Management Plan Amendment, the “New Mexico Agreement”, and the “Texas Plan”. The New Mexico and Texas plans are Candidate Conservation Agreements that the Service approved.

The Texas Comptroller and several oil and gas associations intervened as defendants to support the Service and their own conservation plans. This decision is likely to be appealed, but it certainly seems to strengthen the case for the measures that are being proposed (and challenged) to protect the Lesser Prairie Chicken, a species that was listed as threatened earlier this year.

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On September 26, 2014, a divided panel of the U.S. Court of Appeals for the Third Circuit reversed the U.S. District Court of the Middle District of Pennsylvania, holding that Columbia Gas Transmission Company, an interstate natural gas company regulated by FERC, has the right of eminent domain granted by 15 U.S.C. § 717f(h) to obtain easements over the land of objecting landowners, even when such new easements would be located outside of the existing right of way, in order to replace a deteriorating pipeline that is now located in a heavily populated area of Pennsylvania. The case is Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Penn Township, York County, Pennsylvania, Located on Tax ID# 440002800150000000 Owned by Dwayne P. Brown and Ann M. Brown, et al.

To obtain these easements, Columbia filed Complaints of Condemnation in federal court against four landowners. The District Court denied Columbia’s request, holding that the implementing FERC regulation was ambiguous, and the court therefore “looked outside the regulations” and determined that the agency’s interpretation was not entitled to deference. Columbia had received a “blanket” certificate of convenience and necessity from FERC, which the majority of the Court of Appeals held provided the holder of the certificate with the authority to conduct a routine activity of replacement without further authorization by FERC. According to the Court of Appeals , the applicable FERC rule was not ambiguous, and must be enforced, although the Court of Appeals also noted that this right was subject to certain limitations including environmental compliance. Referring to the Supreme Court’s recent decision in Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2442 (2014), the court held that the statute as a whole must be reviewed before its parts could be considered to be ambiguous. Finally, the Court of Appeals granted Columbia’s request for preliminary injunctions, allowing it to take immediate possession of these easements.

The dissenting opinion concluded with this observation: “It is disturbing and encouraging that, by today’s ruling, the Majority endorses a view of delegated sovereign power so broad that a private gas company, with no agency oversight or other significant procedural restraint, can take the property of other citizens far removed from that company’s original right of way”.

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On September 19, 2014, the U.S. Court of Appeals for the Ninth Circuit held that California Senate Bill 990 violates the Constitutional doctrine of “intergovernmental immunity” because it directly regulates the activities of the US Department of Energy in violation of the Supremacy Clause. S.B. 990 prescribes state radioactive cleanup standards at the Santa Susan Field Laboratory, a site which is undergoing extensive cleanup by the federal government. The case is The Boeing Company v. Movassaghi, Acting Director of the California Department of Toxic Substance Control, et al.

The federal government used the Santa Susan Field Laboratory site, located in Ventura County, to conduct nuclear research, operate nuclear reactors, build and test rockets, and conduct other defense-related work. According to the Ninth Circuit, all of these activities over the years “created a terrible environmental mess”, which the federal government and Boeing, as its contractor, are addressing. The soil, groundwater and bedrock were seriously contaminated.

California enacted S.B. 990, prescribes stringent cleanup standards, purporting to make the large site suitable for subsistence farming activities. However, the Ninth Circuit notes that the doctrine of intergovernmental immunity provides that the activities of the federal government are shielded by the Supremacy Clause from direct state regulation, and S.B. 990 violates this principle. It concluded that no provisions in the Atomic Energy Act, Resource Conservation and Recovery Act or Comprehensive Environmental Response, Compensation, and Liability Act indicate that Congress envisioned a role for the state as embodied in S.B. 990, and therefore the law is of no effect at this site.