Kean Miller

Subscribe to Kean Miller's Posts

According to a 2006 report of the Department of Interior, the Outer Continental Shelf (“OCS”) of the United States has the potential to generate 900,000 megawatts of power, which is roughly equal to the total installed electrical capacity in the United States. Of course, this potential resource cannot be realized without installation of significant infrastructure to harness the power of the winds that blow on the OCS.
Continue Reading Winds of Change on the Outer Continental Shelf

The final revised FMLA regulations issued by the DOL on November 17, 2008 became effective January 16, 2009. The regulations address the FMLA military family leave entitlements and also include other, significant changes to prior regulations. Some of the changes involving employer notices are described in 29 C.F.R. §825.300 and include:
Continue Reading Family Medical Leave Act Regulations Become Effective

The EPA has proposed a rule that would require mandatory reporting of greenhouse gas (GHG) emissions from large sources in the United States.  The proposed rule was signed by the EPA Administrator on March 10, 2009 and published in the Federal Register on April 10, 2009 (74 Fed. Reg. 16,448).  As proposed, the rule will require reporting of stationary source GHG emissions for the 2010 calendar year by March 31, 2011.  According to the EPA, the proposed rule is intended to “collect accurate and comprehensive emissions data to inform future policy decisions.”
Continue Reading EPA Issues Proposed Reporting Rule for Greenhouse Gas Emissions

On April 3, 2009, the National Environmental Development Association (NEDA) filed a petition for rehearing en banc on a controversial decision (Sierra Club v. EPA) by the D.C. Circuit Court of Appeals. In that case, decided December 19, 2008, the court vacated the Startup, Shutdown, Malfunction (SSM) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. The exemption has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act. Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. The appeal stems from proposed rulemakings by the EPA in 2002, 2003 and 2006 to revise the SSM requirements.
Continue Reading NEDA Files Petition for Rehearing on Controversial Decision (Sierra Club v. EPA)

Owners of exempt property may be hurt by a recent Louisiana law change. Historically, the owners of tax exempt property did not have to confirm that the exemption was being respected by the Assessor by checking the tax rolls during the public inspection period. The owner of exempt property could challenge a tax bill by waiting to receive his tax bill, paying the bill under protest, and then filing a lawsuit in district court. This procedure used to be in La. R.S. 47:2110. As the result of a major rewrite of the Louisiana law on tax sales, La. R.S. 47:2110 was renumbered La. R.S. 47:2134.
Continue Reading Law Change Could Hurt Owners of Tax Exempt Properties

A federal appeals court recently ruled that a lower district court erred in granting summary judgment to a hospital in a whistleblower action under the federal False Claims Act that was based on allegations that the hospital’s arrangement with an anesthesia physician group violated the Stark Law and the Federal Anti-kickback Act.

In United States ex rel. Kosenske v. Carlisle HMA, Inc., No. 07-4616 (3rd Cir. Jan. 21, 2009), the 3rd Circuit Court of Appeals found that a hospital failed to meet the personal services exception to the Stark Law because an earlier anesthesia services agreement between the parties did not cover pain management services provided by the anesthesiology practice as a hospital outpatient clinic. The court also found that the agreement did not reflect fair market value for compensation by the hospital to the anesthesiologists that included free office space, supplies, and support personnel.
 Continue Reading Federal Appeals Court Finds the Provision of Free Office Space, Supplies and Equipment to Anesthesia Group Does Not Meet an Exception to the Stark Law

On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act. The Act amends four federal laws by redefining the events that trigger the charge-filing and limitations periods for cases alleging discrimination in compensation. The most important consequence of the Act is that the time limit for initiating a pay discrimination claim will regenerate with each allegedly discriminatory paycheck the employee receives.
Continue Reading Lilly Ledbetter Fair Pay Act Revives Pay Discrimination Claims

1. If you will be contacting any person associated with a state agency or a state board on behalf of your company or any other person, you may be an Executive Branch Lobbyist. Contacting any staff members to advocate anything related to the agency is lobbying. Certain activities by healthcare professionals are not considered lobbying. Additionally, (i) contributions to the cost of certain social functions in connection with meetings of national or regional organizations of executive branch officials and (ii) the cost of meals and refreshment consumed by an executive branch official which is incidental to a speech or panel discussion involving the official are exempt from the Executive Branch Lobbying law.
Continue Reading Ten Things to Know about Louisiana Executive Branch Lobbying

On December 19, 2008, the D.C. Circuit Court of Appeals issued a startling ruling vacating the Startup, Shutdown, Malfunction (“SSM”) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. Sierra Club v. Environmental Protection Agency (Docket Nos. 02-1135, 03-1219, 06-1215, 07-1201). The Sierra Club asked the court to strike down the SSM exemption – an exemption that has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act (CAA). Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. In 2002, 2003 and 2006, the EPA promulgated rulemakings to revise these SSM requirements.
Continue Reading D.C. Circuit’s Decision Eliminates the Startup, Shutdown, or Malfunction Exemption