Latest News - Taft Stettinius & Hollister LLP

Environmental Liability and Insurance Recovery

Kelly Sharpe — Wed, 16 May 2012 07:12:44 -0500

Taft environmental attorneys Frank J. Deveau and David L. Guevara, Ph.D. designed and edited a new book titled Environmental Liability and Insurance Recovery. The book was published in May 2012 by ABA Book Publishing and was sponsored by the ABA's Tort Trial and Insurance Practice Section.

Environmental law and insurance law demand the mastery of an intricately involved set of concepts, definitions, rules, and regulations – all of which are continuously developing. Environmental Liability and Insurance Recovery addresses the legal issues at the crossroads of environmental law and insurance law. Specifically, Environmental Liability and Insurance Recovery addresses the diverse ways in which a party may be exposed to environmental liability and how insurance coverage may provide financial support for such liability.

To purchase a copy of this book, please click here.

CERCLA Apportionment Defense Dismissed

Kelly Sharpe — Wed, 16 May 2012 07:22:31 -0500

A federal district court recently dismissed a defendant’s apportionment defense, asserted pursuant to Burlington Northern and Santa Fe Railway Company v. United States (“BNSF”), 556 U.S. 599 (2009), because the defendant failed to address the entirety of the harm resulting from the contamination.

In Pakootas v. Teck Cominco Metals, Ltd., 2012 WL 1133656 (E.D.Wash. Apr. 4, 2012), the plaintiffs moved to dismiss, and for partial summary judgment against, defendant Teck’s affirmative defense seeking to apportion the harm resulting from the alleged release or threatened release of hazardous substances from the Upper Columbia River Site (the “Site”), which the plaintiffs, The Confederate Tribes of The Colville Reservation (the “Tribes”) and the State of Washington (the “State”), claimed to cause the Tribes and the State to incur response costs and natural resource damages.

To learn more. please read Bill Wagner's recent blog post on Commonground.

Proposed FAR Amendment Pertaining to the Nondisplacement of Qualified Workers Under Service Contracts

Kelly Sharpe — Mon, 14 May 2012 12:05:06 -0500

On September 13, 2011, we told you about the Department of Labor’s (“DOL”) August 29, 2011 final rule implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts. According to Executive Order 13495, the Federal Government’s procurement interest in economy and efficiency are better served when a successor contractor who wins a follow-on contract for the same or similar services at the same location, hires the predecessor’s employees. The Government believes that using the carryover workforce reduces disruption to the delivery of services during the period of transition between contractors, and provides the Federal Government the benefits of an experienced and trained workforce that is familiar with the Federal Government’s personnel, facilities, and requirements.

The DOL’s rule requires contractors, and its subcontractors, who win a follow-on services contract for performance of the same or similar services at the same location, to offer those employees employed under the predecessor contract (other than managerial and supervisory employees) the right of first refusal of employment under the successor contract in positions for which they are qualified, if their employment would otherwise be terminated as a result of the award of a successor contract to another company.

On May 3, 2012, the FAR Council issued a proposed rule which would amend the FAR to implement Executive Order 13495. It will apply to all service contracts above the simplified acquisition threshold ($150,000). The proposed FAR rule requirements are taken from the Executive Order and adopt, in part, the DOL’s final rule. Both rules require many successor contractors and their subcontractors to offer employment to their predecessor's workforces for performance of the same or similar work at the same location. Both rules also include similar exemptions, similar preparation of waiver requirements, similar notification requirements for incumbent employees, and a similar requirement that the outgoing contractor furnish the contracting officer with a list of the names of all service employees working under its contract and subcontracts.

The two rules are different in that the proposed FAR rule does not repeat those elements of the DOL rule relative to enforcement mechanisms, investigation techniques or review methods, except as necessary to ensure that contracting officers and contractors are aware of the DOL requirements. The FAR rule does, however, include additional administrative burdens for all parties and an additional exemption whereby the agency may waive the application of the Executive Order if its application would impair the ability of the Government to procure services on an economical and efficient basis.

The FAR Council has indicated that it is considering adding language to this proposed rule that encourages agencies to enter into bilateral modifications which obligate predecessor contractors to inform their service employees of their right of first refusal, and to provide the list of impacted employees to the contracting officer no less than 30 days before contract completion. The FAR Council has specifically requested public comment on this proposed language.

The FAR Council has also requested public comment on (1) the level to which waiver authority may be delegated under the rule; and (2) the steps that could be taken (as agencies transition to the requirements of the new FAR clause) to reduce instances where service employees of the predecessor contractor and successor contractor do not receive notice of their rights, and where successor contractors receive employee lists less than 30 days before the end of the predecessor contract.

Comments on the proposed rule will be accepted until July 2, 2012.

Quorum Call: NLRB’s New Election Rules Struck Down

Kelly Sharpe — Tue, 15 May 2012 08:39:11 -0500

On May 14, 2012, a federal court struck down the National Labor Relations Board’s new election rules because the NLRB issued the final rules without a participating quorum. This decision is a major setback to the NLRB’s effort to make it easier for unions to win elections.

The NLRB’s proposed new election rules are summarized here. On December 16, 2011, the NLRB tried to finalize some of these new rules, including rules that would have significantly altered how the NLRB processes union election petitions. The new rules were designed to speed up elections. Unions control when a petition for election is filed and will only file the petition when they have a substantial advantage. Faster union elections maximize the unions’ advantage by preventing employers from communicating the many disadvantages of unions to their employees in time to affect the election.

The NLRB needs three members to have a quorum. The NLRB had three members on December 16. The NLRB tried to finalize the new election rules through a December 16 electronic vote. Two members voted to finalize the new rules, but the third member took no action (either for or against the new rules). The NLRB published the final rules on December 16 without waiting for the third member to vote or confirming that the third member was abstaining.

The court found that although the NLRB had a quorum of three members, the December 16 vote to finalize the new rules was invalid because all three members did not participate in the vote. The court emphasized that it was not ruling on the merits of the new rules and that the NLRB could readopt the rules after fixing the quorum problem. But the NLRB may not currently have a quorum as there are court challenges attacking three recent recess appointments to the NLRB. If these recess appointments are struck down, the NLRB would only have two members.

The NLRB will almost certainly appeal the court’s decision. In the meantime, employers facing union election petitions should insist that the petitions be processed under the old rules. We will pass on further developments.

New Kentucky “Pill Mill Bill” Places New Restrictions on Pain Management Facilities and Controlled Substances Prescribing

Kelly Sharpe — Tue, 08 May 2012 07:21:50 -0500

On April 24, Governor Beshear signed into law Kentucky House Bill 1, which introduces restrictions on pain management clinics, strict new limits on prescribing controlled substances, and increased reporting requirements for practitioners using Kentucky’s “KASPER” electronic controlled substances monitoring system. Proponents of the new law hailed it as an important step in battling the prescription drug abuse epidemic that has arisen in Kentucky. Critics of the bill (including the Kentucky Medical Association) argue that it overreaches by intruding into the physician patient relationship and creating burdensome requirements on physicians.

HB 1 defines a “Pain Management Facility” as a facility where the majority of the patients of practitioners at the facility are provided treatment for pain that includes the use of controlled substances and either (i) the facility’s primary practice component is the treatment of pain or (ii) the facility advertises in any medium for any type of pain management services. Specifically excluded from this definition are educational institutions, hospices, ambulatory surgical centers, long-term care facilities, hospitals, and offices of hospital-employed physicians. HB 1 requires each pain management facility to be owned only by licensed physicians and to be operated by a certified pain management specialist (whether the owner or his or her designee).

HB 1 also places tight restrictions on health care practitioners prescribing controlled substances, whether or not in the context of a pain management facility. Specifically, HB 1 requires that prior to the initial prescribing or dispensing of certain classes of controlled substance, the practitioner shall:

Obtain a complete medical history and conduct a physical examination of the patient and document the information in the patient’s medical record;
Query KASPER for all available data on the patient;
Make a written treatment plan stating the objectives of the treatment and further diagnostic examinations required;
Discuss the risks and benefits of the use of controlled substances with the patient, including the risk of tolerance and drug dependence; and
Obtain written consent for the treatment.

In addition, a practitioner must periodically monitor the course of treatment and query KASPER no less than once every three months before issuing any new prescription refills for the controlled substances. The practitioner must also create and maintain detailed records regarding the patient and the controlled substances prescribed. The bill also mandates that each health care professional licensing board in the Commonwealth establish regulations regarding controlled substances, including establishing mandatory prescribing and dispensing standards, prohibiting a practitioner from dispensing greater than a forty-eight hour supply of certain controlled substances, and establishing procedures for suspending a practitioner’s license to protect patients and the public.

HB 1 transfers operation of KASPER from the Cabinet for Health and Family Services to the Attorney General, and it requires all licensed health care practitioners and pharmacists to register to use KASPER. Dispensers of certain controlled substances must report data to KASPER within twenty-four hours of dispensation. Practitioners must query KASPER prior to prescribing or dispensing certain controlled substances.

Finally, HB 1 authorizes an interstate compact to permit state prescription monitoring programs to share prescription data among themselves. The provisions of the bill regarding the compact are to become effective and binding upon the legislative enactment of the compact into law by no less than six states.

HB 1 becomes effective on July 12, 2012.