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Companies Can Bank On Continued U.S. EPA Enforcement Against Unregistered Pesticide Products
Hanson Bridgett LLP, May 2020

As noted in our prior alerts, the US EPA has made it a priority during the ongoing COVID-19 pandemic to target sham pesticides and products falsely claiming to prevent infection from COVID-19, using its authority under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).1 (The prior alerts are available here and here.) Notably, and in addition to regulating pesticide substances, e.g...

Recent Conflict of Interest Cases Reveal Pitfalls for Land Use Practitioners
Hanson Bridgett LLP, May 2020

Key Points City council and planning commission recusals can have a significant impact on the outcome of hearings involving land use and environmental issues. Recusals can lead to tie votes or the loss of a quorum, which may make it impossible for local governments to approve development projects. Failing to disclose conflicts of interests can be grounds for reversing local government approvals...

CDPH Requires all California Skilled Nursing Facilities to Submit "COVID-19 Mitigation Plan" Creating New Documentation Concerns
Hanson Bridgett LLP, May 2020

On May 11, 2020, the California Department of Public Health ("CDPH") issued an All Facilities Letter (AFL 20-52) requiring skilled nursing facilities ("SNF") to develop and implement a facility specific COVID-19 mitigation plan (the "Plan") with six different, complicated elements. The CDPH requirement is in addition to any local requirements for COVID-19 planning and may or may not track the requirements already in place in some local jurisdictions...

CDPH Requires all California Skilled Nursing Facilities to Submit 'COVID-19 Mitigation Plan' Creating New Documentation Concerns
Hanson Bridgett LLP, May 2020

Key Points: New CDPH mandate requires action by skilled nursing facilities within 21 calendar days of issuance of All Facilities Letter. CDPH to conduct onsite visits to skilled nursing facilities every 6 to 8 weeks to verify compliance with facility's approved COVID-19 Mitigation Plan. New Mitigation Plan requirement is in addition to any local requirements for COVID-19 planning...

IRS Issues Cafeteria Plan Relief to Address COVID-19 Pandemic
Hanson Bridgett LLP, May 2020

Key Points Cafeteria plans may permit mid-year election changes prospectively, including health and dependent care FSA contributions, to address effects of COVID-19 pandemic. Grace period for health and dependent care FSAs may be extended through 2020, even for plans that allow carryovers. Employers must notify eligible employees of temporary plan changes, and adopt plan amendments by the end of 2021...

Relief for Employee Benefit Plan Fiduciaries Due to COVID-19
Hanson Bridgett LLP, May 2020

The Department of Labor (DOL) has issued a "Relief Notice," providing ERISA plan fiduciaries additional time to furnish required notices and disclosures to participants and beneficiaries. For governmental plans that are not subject to ERISA, the U.S. Department of Health and Human Services will extend similar timeframes otherwise applicable under the Public Health Service Act...

Employee Benefit Plan Deadlines Extended Due to COVID-19
Hanson Bridgett LLP, May 2020

Key Points: Several key deadlines for employee benefit plan participants are being extended due to the COVID-19 pandemic under guidance issued by the U.S. Department of Labor (DOL) and IRS. The deadline extensions could impose significant administrative burdens on plans and plan sponsors. The Department of Labor (DOL) has issued new guidance extending key deadlines for participants in private sector plans subject to ERISA. For governmental health plans, the U.S...

Project Approved Pursuant to SB 35 Streamlining Procedures Survives Court Challenge
Hanson Bridgett LLP, May 2020

Key Points Cupertino Vallco Mall Project clears major hurdle thanks to California court's denial of writ of mandate petition from anti-housing group. Another favorable SB 35 ruling may embolden further use of the procedure for streamlining housing development in California...

CMS-Mandated COVID-19 Reporting Requirements and Enforcement Actions Coming for Skilled Nursing
Hanson Bridgett LLP, May 2020

Key Points Facilities will have until the week ending June 7, 2020 to report specific COVID-19 data to the CDC or face the assessment of deficiencies and CMPs. Facilities are now required to notify residents, their representatives, and families when the facility has a confirmed COVID-19 infection or 3 instances of new onset respiratory symptoms within 72 hours...

Bay Area Counties Issue New Orders Permitting Construction to Resume with Conditions
Hanson Bridgett LLP, May 2020

Key Points:  Bay Area counties issued new Shelter Orders on April 29, 2020 allowing all construction to resume. The new Shelter Orders include detailed Construction Safety Protocols that construction jobsites must comply with. There is one Construction Safety Protocol for “small” construction projects, and a more rigorous Construction Safety Protocol for “large” construction projects...

A Role for Water Treatment Systems in Fighting the COVID-19 Pandemic
Hanson Bridgett LLP, May 2020

Key Points Monitoring the movement of the COVID-19 virus in untreated wastewater may provide useful information in tracking the spread of the disease. Current methods for treating wastewater supplies appear to be sufficient to protect against further spread of COVID-19. In the absence of widespread testing and contact tracing, could untreated wastewater hold the key to tracking the spread of COVID-19? Increasingly, the answer appears promising...

No Deduction for You
Hanson Bridgett LLP, May 2020

Key Points The IRS recently issued guidance (Notice 2020-32) regarding the deductibility of expenses incurred in a taxpayer’s trade or business when the taxpayer receives a PPP loan under the CARES Act. Section 1106 of the CARES Act provides that PPP loans may be forgiven without causing the borrower to incur cancellation of debt income...

New Bay Area Shelter-in-Place Orders Allow for the Resumption of Environmental Site Remediation and Agricultural Operations
Hanson Bridgett LLP, April 2020

The Bay Area counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara, and the City of Berkeley have jointly issued new Shelter-in-Place orders superseding their existing March 31, 2020 Shelter-in-Place orders...

EPA Makes Good on Promise to Crack Down on Sham COVID-19 Cleaners and Disinfectants
Hanson Bridgett LLP, April 2020

Key Points: EPA is marching forward with its plans to prevent sham COVID-19 cleaners and disinfectants from entering the marketplace. Manufacturers should continue to adhere to EPA's policy regarding products that make disinfectant efficacy claims. EPA warns consumers against injecting disinfectants into their bodies. On April 23, 2020, the U.S...

California Superior Court's Application of SB 35 to Los Altos Development Project Provides Encouragement to Housing Proponents
Hanson Bridgett LLP, April 2020

Key Points A recent order from the Santa Clara County Superior Court suggests that California courts intend to uphold and implement SB 35's goals of fast-tracking housing developments that meet established, objective criteria. California courts will closely scrutinize the objective planning standards cities and local governments utilize in determining whether a project is compliant with local land use criteria and building codes...

Montana District Court Decision Invalidates Army Corps Nationwide Permit 12 Impacting Thousands of Ongoing and Planned Utility Projects Throughout the Country
Hanson Bridgett LLP, April 2020

Key Points A federal district judge has invalidated the Army Corps of Engineers Nationwide Permit 12 for failure to comply with the Endangered Species Act, in response to a case filed against the notorious Keystone XL pipeline. As a result of the decision, the Army Corps has halted new and pending approvals under the permit, which is required for construction projects that will discharge dredged or fill material into waters of the United States...

New Orders from 6 Bay Area Counties Require Face Coverings to be Worn During Work in Most Circumstances
Hanson Bridgett LLP, April 2020

Key Points: Face coverings are now mandatory for most workers in six Bay Area counties. These orders apply to those working in proximity to others and in areas frequented by the public, and to all essential infrastructure workers. There are immediate implications for public agencies, contractors, and construction project owners...

Recent Changes to CEQA-Related Procedures from COVID-19
Hanson Bridgett LLP, April 2020

Key Points: An executive order from the governor's office modifies California Environmental Quality Act ("CEQA") noticing procedures, requiring local agencies to take extra steps to notify the public that environmental review processes are underway or have concluded for development projects. Extra steps include posting notices on agency websites and active outreach to interested parties...

Uncertainty on Maui: How Will Functional Equivalence Work in the Real World?
Hanson Bridgett LLP, April 2020

Key Points A discharge of pollutants to groundwater may require a permit under the Clean Water Act. The new “functional equivalent of a direct discharge” test will be difficult to apply. It will be a long and arduous process to reach uniformity as agencies, courts, and the regulated community try to figure out how to proceed on a case-by-case basis. On April 23, 2020, the Supreme Court published its much-awaited opinion in County of Maui v...

CARES Act Update: New SBA Guidance on PPP Loan 'Necessity'
Hanson Bridgett LLP, April 2020

Key Points: New guidance from the SBA clarifies the "necessity" requirement for PPP loans. Start-ups should proceed with caution when planning to apply for a PPP loan. Since the passage over the Coronavirus Aid, Relief, and Economic Security Act, or the CARES ACT (the “Act”) start-ups and emerging companies have received mixed signals and guidance regarding their eligibility for loans and loan forgiveness under the Paycheck Protection Program ("PPP")...

CARES Act Update: New SBA Guidance on PPP Loan 'Necessity'
Hanson Bridgett LLP, April 2020

Since the passage over the Coronavirus Aid, Relief, and Economic Security Act, or the CARES ACT (the “Act”) start-ups and emerging companies have received mixed signals and guidance regarding their eligibility for loans and loan forgiveness under the Paycheck Protection Program ("PPP")...

Ready to Return to Work? Perhaps Not San Francisco Temporarily Expands Paid Leave for Employees Impacted by COVID-19
Hanson Bridgett LLP, April 2020

  Key Points: SF passed emergency ordinance requiring employers to provide workers with supplemental COVID-related paid leave. The ordinance applies to employers not covered by federal Families First Coronavirus Response Act. Employers are required now to post notice about this emergency leave, which is available from SF’s Office of Labor Standards Enforcement. Despite the discussions of reopening businesses, employees may not be returning to work anytime soon...

San Francisco Extends Commercial Eviction Moratorium
Hanson Bridgett LLP, April 2020

Key Points: SF Major extends commercial eviction moratorium through May 17, 2020. Moratorium applies only to commercial tenants registered to do business in San Francisco meeting certain requirements. Moratorium applies to all attempts to recover possession due to non-payment. Moratorium covers security deposits...

A Pandemic Upsets Supply Chains as Proposition 65 Enforcement Soars and New Regulations Take Effect
Hanson Bridgett LLP, April 2020

Key Points: Since Governor Newsom announced a state of emergency due to the COVID-19 outbreak, private Proposition 65 enforcement has increased by about 50%. Effective April 1st, new regulations clarify how manufacturers can satisfy their Proposition 65 warning obligations. These new regulations also clarify when retail sellers assume the burden under Proposition 65 to warn Californians...

Top Ten Signals That Your Company is or May be a Candidate for Bankruptcy
Hanson Bridgett LLP, April 2020

Key Points: In most circumstances, the bankruptcy court should be a court of last, not first, resort. In certain circumstances, outlined in this article, the commencement of a bankruptcy case makes good sense. In most circumstances, because of the costs and uncertainties associated with the commencement and prosecution of a bankruptcy case, the bankruptcy court should be a court of last, not first, resort...

 

 

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