Let's Make Monday Awesome!

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Most of us relish Fridays, but the opposite holds true for Mondays. Inc.com came up with a list of 7 Things You Can Do on Friday to Make Monday Awesome. I'm game. Are you?

Here's Inc.com's list:

  1. Set up some exciting contacts

  2. Organize the week

  3. Get one thing off your desk

  4. Shake up your routine

  5. Work on your future

  6. Surprise yourself

  7. End the week on a high

Can we add start the week on Tuesday? Or, can we meet for lunch on Monday? If we schedule lunch for Monday now, I can end the week on a high!

Additional Sources: Do These 10 Things on Friday to Make Monday Awesome; 20 Ways To Make Your Monday Awesome

New Superfund Ruling: Supreme Court Holds that CERCLA Section 9658 Does Not Preempt State Statutes of Repose

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By Pillsbury Winthrop Shaw Pittman

The Supreme Court has issued its decision in the case of CTS Corp. v. Waldburger, et al., __ S. Ct. __ (June 9, 2014), argued April 23, 2014.

The Court (Justice Kennedy) reversed the Fourth Circuit, which had held that CERCLA Section 9658 also preempted state "statutes of repose" as well as state statutes of limitations. Section 9658 was added to CERCLA in 1986. CTS operated an electronics manufacturing plant in North Carolina until 1987, when it was sold as being "environmentally sound". In 2011, the plaintiffs in this case filed a lawsuit in federal court alleging that CTS' operations had released hazardous substances that contaminated the property they had more recently purchased. CTS argued before the district court that North Carolina's 10 year statute of repose required the dismissal of their lawsuit, and the court agreed. However, the Fourth Circuit disagreed, holding CERCLA Section 9658 also preempted this North Carolina law.

The Court granted a petition for certiorari because there were some conflicting interpretations of Section 9658 by the courts of appeal. In reversing the court of appeals (the vote was 7 to 2, with Justices Ginsberg and Breyer dissenting), the Court subjected Section 9658 to a thorough textual analysis and determined that Congress had not clearly provided that state statutes of repose were preempted by CERCLA, and so the majority concluded that state statutes of repose were not included in the preemptive effect of Section 9658. This was particularly important because, as the Court noted a few years ago, the states were "independent sovereigns in our federal system" and "the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." The dissenters stated that the Court's decision gives "contaminators an incentive to conceal the hazards they have created until the repose period has run its full course".

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Water Bill to Boost Public-Private Partnerships

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We have previously written regarding critical repairs and updates needed for the Nation's aging infrastructure. We have also noted the need for private investment to get these capital-intensive infrastructure projects off the ground. An Act recently passed with strong bipartisan support by Congress and expected to be signed into law as early as this week by President Obama seeks to promote private investment in water infrastructure projects through innovative financing programs and the use of public-private partnerships ("P3s").

The Water Resources Reform and Development Act of 2014 ("WRRDA") (H.R. 3080) establishes a five-year pilot program - the Water Infrastructure Finance and Innovation Act ("WIFIA") - which provides low-interest federal loans and loan guarantees for major water infrastructure projects. WIFIA authorizes the Army Corps of Engineers and the Environmental Protection Agency to provide up to $175 million in direct loans and loan guarantees for the construction of critical water infrastructure projects, including those delivered through P3s. WIFIA is modeled after the Department of Transportation's Transportation Infrastructure Finance and Innovation Act, a successful federal program which has supported major P3 transportation projects.

In addition, WRRDA creates a separate 15-project pilot program - the Water Infrastructure Public-Private Partnership Program - to assess the use of P3s to accelerate projects in such areas as hurricane, storm, and flood damage reduction; coastal harbor improvement; and aquatic ecosystem restoration. These pilot projects authorize the Army Corps of Engineers to enter into agreements with private entities and state and local governments to help address a significant project backlog.

It is estimated that the U.S. water and sewer infrastructure will need an investment of between $600 billion and $1 trillion in the coming decades. Given the magnitude of capital needed and the critical nature of these projects, P3s seem to be an ideal structure for accomplishing the work, particularly given the current financial pressures faced by the government and its agencies. If WRRDA and its programs prove successful, it makes sense to expand such financing programs and encourage the use of P3s to fund projects addressing other sectors of the Nation's infrastructure.

Hallmarks of Infrastructure Success

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Enhancing the quality of life and economic opportunity in any region will require investments in social infrastructure--facilities for civic life, health care, education, and social services--as well as transportation infrastructure--transit, highways, surface streets, and parking. These projects entail considerable risks in design, approval, and execution, and must compete with investments elsewhere in the public and private sectors. Attracting economic and political support of all types for infrastructure will be critical to achieving the region's potential.

In this article, reprinted with permission from the Bay Area Council Economic Institute, Pillsbury Partner Rob James identifies the hallmarks of projects that tend to realize the greatest success in navigating the risks and meeting the competition.

WA Administrative Code Revisions Effective July 1, 2014

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UPDATE: Arc Fault Circuit-Interrupter (AFCI) and Ground Fault Circuit-Interrupter (GFCI) Protection -- Effective July 1, 2014, Washington will require Arc Fault Circuit-Interrupter Protection (AFCI) as specified in the 2014 National Electrical Code (NEC).

Proposed rule changes to Washington Administrative Code § 296-46B were adopted on May 20, 2014 and will become effective on July 1, 2014. In addition to the changes to WAC 296-46B, the 2014 edition of the National Electrical Code ("NEC") (NFPA 70-2014) will also become effective July 1, 2014. The Washington State Department of Labor & Industries recently confirmed that Permits purchased prior to July 1, 2014 may conform to either the 2008 NEC or 2014 NEC. However, permits purchased July 1 or after must comply with the 2014 NEC.

It further confirmed it will enforce 2014 NEC § 210.64 for indoor electrical service areas only. 2014 NEC § 210.64 states: "At least one 125-volt, single phase, 15- or 20-ampere rated receptacle outlet shall be installed within 15 m (50 ft) of the electrical service equipment." It recognized that this new requirement responded to concerns that cords used to power equipment used for testing and monitoring service equipment being routed down hallways, across rooms, and through doorways creating slip, trip and fall hazards. It confirms that it understand this intend and therefore will only enforce the requirements of NEC § 210.64 for indoor electrical service areas; if service equipment is located outdoors, the requirements of NEC § 210.64 will not apply.

Additional Sources: Washington 2014 Electrical Rule Development

Social Media, Not Just For Everyone Else

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Many of you who read blogs and other on-line publications likely understand the power of social media. Is it a tool in your company's tool belt? Amy Pierce June 2 2014.jpgWhat are your reasons for using social media? How are you using it? And, if not, why not?

Important reasons for embracing and/or changing the way you view social media may include:

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WA Issues Guidance On Who Can Place Building Integrated PV Systems

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Revised Code of Washington §§ 19.28.041, 19.28.161, and 19.28.006 definitions of "Equipment" and "Electrical construction trade" require that all parts and components of solar photovoltaic (PV) systems be installed and maintained by properly licensed electrical contractors and certified electricians. Construction contractors who are not electrical contractors are not properly licensed to install solar PV panels except in very specific applications as described in Washington Administrative Code § 296-46B-690. The allowance in Washington Administrative Code § 296-46B-690(5) permits construction contractors and uncertified individuals to place only "building integrated" PV panels but all electrical work, including wiring installation, terminations, etc., necessary to complete the electrical installations must be completed by the entity that obtained the electrical work permit.

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Ohio Certificates of Authorization Expire June 30

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If you provide engineering and/or surveying services in Ohio, the current Certificates of Authorization expire on June 30, 2014 -- Ohio law has changed and the renewal process is now biennial. Mark your calendar -- Registration Deadline is Monday, June 30, 2014 by 4:30 p.m. and Certificates of Authorization cannot be renewed online or by telephone.

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Chief Electrical Inspector for WA Department of Labor & Industries Stepping Down

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Rod Mutch, Chief Electrical Inspector for the Washington State Department of Labor & Industries, announced his decision to step down as Chief Electrical Inspector for the Department effective June 1, 2014. He confirmed that he will remain with the Department and will be working in the Department's Yakima office.

Until a permanent chief electrical inspector is appointed, Larry Vance has agreed to serve as interim Chief Electrical Inspector for the Department. Larry Vance has been working as an Electrical Technical Specialist in the electrical program since November 2007with brief periods where he served as the Electrical Inspection Field Supervisor in Tacoma and interim Electrical Program Manager and Chief Electrical Inspector, and he has 18 years of electrical experience in the private sector of the electrical construction industry.

Best wishes, and thank you for your service.

Iowa PMSB License Renewal-Related Legislative Changes

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The Iowa Plumbing and Mechanical Systems Board (Board) licenses those working in the plumbing, hydronic, heating, ventilation, and air-conditioning (HVAC), and refrigeration disciplines. It issues trade licenses, specialty licenses and medical gas piping installation certifications. It began to issue contractor licenses on November 1, 2012, and anyone working in these disciplines in Iowa is required to be licensed with the Board. Senate File 427, signed into law on April 26, 2013 and incorporated into Iowa Code § 105, contains several significant changes to the licensing program which will be implemented in stages throughout the next 3 years.

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NJ Trial Court Dismisses Condo Association's Defect Claims

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In late March, a trial court in Bergen County, New Jersey dismissed a condominium association's construction defect claims against several construction entities for failure to comply with the applicable statute of limitations. This decision's appellate aftermath will be interesting to follow, because the trial court stripped away some of the protection that New Jersey's discovery rule affords to property owners who become aware of latent defects well after a project is substantially completed.

Pursuant to the discovery rule, "a cause of action will be held not to accrue until the injury party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). And unlike some states, New Jersey's discovery rule applies in contract cases involving latent construction and design defects. Torcon, Inc. v. Alexian Bros. Hosp., 205 N.J. Super. 428, 432 (Ch. Div. 1985). What this means is that the statute of limitations for design deficiencies and construction defects begins to run upon substantial completion. Mahoney-Troast v. Supermarkets General, 189 N.J. Super. 325, 329 (App. Div. 1983).

In Palisades at Fort Lee Condo. Ass'n v. 100 Palisade, 2014 N.J. Super. Unpub. LEXIS 743, *3 (Law Div. Mar. 31, 2014), construction was deemed substantially complete on May 1, 2002. The Association hired a consultant to perform inspections in November 2006, and in May 2007, the consultant issued a report identifying various construction and design defects. The Association, however, did not file a Complaint until March 2009, almost seven years after the date of substantial completion. The trial court held that although the Association's claims may not have accrued until May 2007, when it received the report, it still had until May 2008 to file suit. The trial court stated, "[i]t has been well established in New Jersey case law that if the plaintiff has sufficient knowledge of its claim and there remains a reasonable time under the applicable limitations period to commence a cause of action, the action will be time barred if not filed within that remaining time." Id. at *8. One of the reasons the court dismissed the Complaint is because the Association had one year to file suit after becoming aware of its potential claims.

The Palisades court cited to Torcon (another trial court opinion) for this proposition, although the Torcon court's holding in this regard related to application of equitable estoppel in the context of a contractor's misrepresentation or concealment of material facts. By contrast, the intent of New Jersey's discovery rule is to toll the accrual of the statute of limitations, and the Association's six-year statute of limitations should have commenced in May 2007, if that is the date when it knew or should have known that it may have claims arising out of defective construction.

Nevertheless, the Palisades decision should give pause to property owners and their attorneys to carefully monitor early signs of faulty workmanship, and to not assume that the discovery rule will automatically extend the six-year time period to bring claims for construction defects. A Notice of Appeal has been filed in Palisades and it will be interesting to see how the Appellate Division handles this issue.

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NV Contractors Board Offers FREE Training Day to Contractors

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The Nevada State Contractors Board recently sent out an invitation to all contractors for its second FREE educational seminar Wednesday, June 25 from 7:30 a.m. to 3 p.m. Space is limited to 50 participants at the Reno location, 5400 Mill Street, and 100 at the Las Vegas location, Clark County Building Department, 4701 West Russell Road. RSVP to Scott Smith, NSCB Public Information Specialist, or call 702-486-1165.

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5th Annual Groundbreaking Women in Construction -- June 12

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Learn "Personal Career Strategies to Advance Your Professional Path" at the upcoming 5th annual Groundbreaking Women in Construction event that is being held at the McGraw Hills Financial Global Headquarters, 1221 Avenue of the Americas, New York, NY 10020, on June 12. Breakfast and registration start at 8:00 a.m. It's not too late, registration is still open. The Program Agenda and Speaker Profiles are also available online.

Minnesota to Host Super Bowl LII in New $1 Billion Multi-Purpose Stadium

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Apparently it's true, "If you build it, the NFL will come." NFL Commissioner Roger Goodell announced Tuesday, May 20, that Minnesota was awarded the right to host Super Bowl LII, "[k]eeping with the tradition of rewarding teams with new stadiums." It confirmed that "[o]ne reason behind the league giving the nod to Minnesota is the nearly $500 million in public money going toward the team's new facility."

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AGC of America: Construction Employment Increases in 220 out of 339 Metro Areas Between April 2013 & 2014

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In its May 27 Press Release, The Associated General Contractors of America reported that "[c]onstruction employment expanded in 220 metro areas, declined in 70 and was stagnant in 49 between April 2013 and April 2014, according to a new analysis of federal employment data" it released today. It highlights both construction job gains and losses.

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