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In case you missed it, on January 7, Pillsbury attorneys David Dixon, Dick Oliver, and Toghrul Shukurlu published their Client Alert titled Small Business Holiday Gift: Change to Small Business Act May Affect Size Status for Many Service Providers. Takeaways from their Client Alert include:

  • The Small Business Runway Extension Act of 2018 will allow some service contractors who would have otherwise outgrown their applicable size standard to remain eligible for small business set-aside contracts.
  • This Act may also negatively affect certain large businesses with declining revenues by extending the period before they can become eligible for small business set-aside contracts.
  • Small and large business concerns that have recently outgrown their size standards should be aware of this change in the method of calculating their average annual revenues when conducting business planning.

The Small Business Administration (SBA) has stated that the increased time period for calculating average annual revenues will not take effect until the SBA issues a final regulation implementing this change.

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Here’s the visionary “Green New Deal” of the Green Party, apparently drafted sometime in 2016 and which has attracted some support. The centerpiece of this program is the transition to a 100% clean, renewable energy base. These ideas are generating some comment.

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In what the Court of Appeals describes as “the infamous government-created environmental disaster known at the Flint Water Crisis,” a panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that some of the government personnel responsible for this disaster may be liable, under 42 U.S.C. § 1983, for monetary damages based on the Substantive Due Process Clause of the Fourteenth Amendment to the Constitution. The case is Guertin, et al., v. State of Michigan, et al., decided on January 4, 2019.

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With the close of 2018, the Competitive Enterprise Institute released a report asking “how is President Donald Trump’s regulatory reform project going”? Their answer: “Better than Obama, Bush II, and Clinton in terms of fewer regulations, but not as good as Trump’s own first year.”

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On December 3, 2018, the U.S. Supreme Court invited the Solicitor’s views on the contested issues whether discharges to groundwater are subject to an he National Pollutant Discharge Elimination System (NPDES) permit, and whether there is an “ongoing violation” of the Clean Water Act for Citizen Suit jurisdiction when the source of the pipeline spill has been fixed, yet not all pollutants have been cleaned up.

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On December 26, a divided panel of the U.S. Court of Appeals for the Ninth Circuit accepted an interlocutory appeal of the presiding District Court’s pre-trial rulings in the novel climate change case that is being tried in Oregon. The case is Juliana, et al. v. United States of America.

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An unusual Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, known also as Superfund) remedial action has resulted in a broad ruling that Environmental Protection Agency (EPA) remedial actions and their implementation by EPA contractors may be entitled to broad protection from liability insofar as the Federal Tort Claims Act (FTCA) is involved. The case is Gadsden Industrial Park LLC v. United States of America, CMC Inc., and Harsco Corporation, an unpublished opinion released by the court on November 30, 2018.

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Most contractors are diligent about making sure that they pay their licensing fees, renew worker’s compensation insurance, and maintain the required bonds. What may be less obvious is how critically important it is to have current company personnel listed on the company’s licensing records with the Contractor’s State Licensing Board. Only personnel listed on the CSLB’s records are authorized to act on behalf of the licensee with respect to CSLB-related matters.

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In September 2017, the California legislature and Gov. Jerry Brown enacted Senate Bill 35 (SB 35) to streamline housing development in cities that are not meeting their housing needs. SB 35 is aimed at easing California’s severe housing shortage and affordability crisis but was highly controversial due to concerns about loss of local control over housing development. In the year since SB 35 was enacted, several development projects in the San Francisco Bay Area have invoked SB 35 to bypass local opposition or cumbersome permitting timelines.

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On December 3, the Environmental Protection Agency (EPA) published a Federal Register notice advising the regulated community that EPA’s controversial Clean Air Act (CAA) stationary source Risk Management Program (RMP) rules are effective as of December 3, 2018 – the Final Rule: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act (83 FR 62268). The initial package of the RMP rules was promulgated in 1996, but a series of chemical explosions prompted the development of new rules, whose process safety, third party auditing, emergency response, preparedness and information sharing provisions were designed to confront these challenges.

The latest iteration of these rules was published on January 13, 2017, or only a few days before the new administration took office. The new administration took various administrative steps to delay them for a while. However, the U.S. Court of Appeals for the District of Columbia Circuit, in its August 17, 2018 decision in Air Alliance Houston, et al., v EPA, held that the arguments made to delay the effective date of these rules were not consistent with the relevant provisions of the CAA. The Court of Appeals also stated that EPA retains authority under the CAA to ”substantially amend the programmatic requirements of the Chemical Disaster Rule, and pursuant to that authority, revise its effective and compliance dates, subject to arbitrary and capricious review.”

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