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In Brexit and Procurement, Pillsbury partner Tim Wright discusses the UK Government’s January 23 publication of a 132-page strategy green paper—or consultation document—entitled Building our Industrial Strategy. The paper sets out the Government’s “buy British” plan aimed at helping UK-based suppliers, supply chains and infrastructure companies when
bidding for public sector contracts. The paper confirms that focusing Government buyers on “social and economic factors” when designing their procurements will “encourage innovative solutions and maximise the positive impact of public procurement on strengthening the [UK’s] economy.”

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On January 18, the U.S. Court of Appeals for the Second Circuit reversed the lower court and held that EPA’s 2008 promulgation of the “Water Transfers Rule” (Rule) published in the Federal Register at 73 FR 33697 on June 13, 2008, was entitled to Chevron deference, and reinstated the rule. The regulation is codified at 40 C.F.R. § 122.3(i), and provides that water transfers, as defined in the rule, do not require National Pollutant Discharge Elimination System (NPDES) permits because they do not result in the addition of a pollutant. The case is Catskill Mountains Chapter of Trout Unlimited, Inc., et al, v. EPA.

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Yesterday, our colleagues James Gallagher and Glenn Sweatt published their client alert discussing a recent and important decision issued by the Armed Services Board of Contract Appeals (ASBCA) in Lockheed Martin Integrated Systems, Inc., ASBCA Nos. 59508 and 59509. The decision exposes what has been in recent years an all-too-familiar practice by the Defense Contract Audit Agency (DCAA) of questioning the allowability of government contractor costs based on meritless arguments and the Defense Contract Management Agency’s (DCMA) related rubber- stamping of the DCCA’s disallowance of costs without proper exercise of its authority. The alert is titled Warning Shot Fired (Finally) at Improper DCAA Cost Disallowance Basis.

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“The old order changeth, yielding place to new.” January 2017 has been a very active month, with several important environmental and federal administrative court rulings being issued, and many significant rules being proposed and finalized. Here’s a selection: Continue Reading ›

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Today, our colleague Kevin Ashe posted his client alert on the California Environmental Protection Agency’s and Office of Environmental Health Hazard Assessment’s recent release of an “Update to the California Communities Environmental Health Screening Tool,” better known as CalEnviroScreen Version 3.0. CalEnviroScreen is a software tool used to identify and direct resources to communities affected by pollution, based on environmental exposure and population data. As guidance for prior CalEnviroScreen versions made clear, however, the tool’s approach to “cumulative impacts” is very different from that of environmental review under the California Environmental Quality Act (CEQA). While Version 3.0 omits a clear statement to that effect, lead agencies and project proponents should be confident that CEQA law has not changed and CalEnviroScreen remains the wrong tool for CEQA review of local projects and permitting decisions. The alert is titled CalEnviroScreen 3.0 – Still the Wrong Tool  for CEQA Review.

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Recently, our colleagues Emily Erlingsson, Kathy Donovan and Anita Mayo posted their client alert discussing the amendments made by the Office of Government Ethics to the executive branch gift rules. These changes included clarifications to existing gift exceptions that are commonly used by corporations and organizations whose employees interact with federal officials. The changes and clarifications seek to strengthen the executive branch gift rules and increase transparency. The alert is titled 2017 Brings Changes to the Federal Executive Branch Gift Rules.

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Recently, our colleagues Michael Reese and Andrew Home posted their client alert discussing the Water Infrastructure Improvements for the Nation Act. This legislation creates new obligations as well as new opportunities for infrastructure constructors, owners/operators of public water systems and their lenders. This new legislation and related appropriations may pave the way for President-elect Trump’s proposed significant investment in American water infrastructure. The alert is titled 2016 Water Legislation Reaches New Areas & Sets the Stage for President-Elect Trump

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Last summer, in the waning stages of the Supreme Court’s 2015-2016 term, the U.S. Supreme Court issued an opinion reversing the U.S. Court of Appeals for the Ninth Circuit’s use of Chevron deference to overrule a district court which had decided that neither the Fair Labor Standards Act (FLSA) nor the varying interpretations of the special automotive dealership regulatory interpretations excluded service advisors from the exemptions for overtime compensation. The case is Encino Motorcars, LLC v. Navarro. Now, on remand, the Ninth Circuit, again, has concluded that service advisors are entitled to overtime pay and compensation.

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OSHA has just published a Final Rule restating its interpretation of the “continuing violations” theory. There are now two Circuit Court of Appeals rulings that disagree with this interpretation: AKM LLC dba Volks Contractors v. Secretary of Labor, et al. (Volks) and Delek Refining, Limited v. Occupational Safety and Health Review Commission, et al. (Delek).

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On January 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling reversing the district court’s decision that Asarco could not proceed with its claims for cost recovery at a Utah Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mining site. The case is Asarco, LLC v. Noranda Mining, Inc.

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