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Legal Alert: TSCA Reform Bill Becomes Law

Introduction
On June 22, 2016, President Obama signed into law reforms to the federal Toxic Substances Control Act (TSCA), referred to as the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” (Act).  The Act is the first substantive reform to TSCA in about 40 years and  revises the process and requirements for evaluating regulatory control of a chemical and enhances public safety by increasing EPA scrutiny on existing and new chemicals being used in commerce.  The Act was approved by large majorities in the House and Senate and had the support of the chemical industry, business interests, environmental and health groups, etc.  The Act will affect what chemicals are used in commerce based on the potential for unreasonable risks to human health or the environment. 

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CONTACT: Brian M. Babb

Legal Alert: U.S. Supreme Court Rules Wetland Determinations are Appealable

On May 31, 2016, in United States Army Corps of Engineers v. Hawkes Co., Inc. et al., the U.S. Supreme Court unanimously ruled that approved wetland jurisdictional determinations (JDs) by the U.S. Army Corps of Engineers (USACE) are appealable final actions.  This decision enables landowners to appeal JDs that they believe are unlawful soon after the determinations are made.  The Court’s decision (see link below) eliminates the Corps prior requirement that a JD could only be challenged after the landowner applies for and is denied a permit or after the landowner proceeds with development without a permit and faces an enforcement action. The direct appeal of a JD will save landowners wishing to challenge a JD considerable time, effort, and expense. 

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CONTACT: Brian M. Babb

Revised Ohio Receivership Statute Brings Clarity for Lenders and Prospective Foreclosure Sale Purchasers

On March 23, 2015, Ohio’s recently enacted amendments to the receivership statute will go into effect, creating certainty and consistency for various existing receivership practices previously developed and used by Ohio courts.  The revised receivership law amends, among other things, certain sections of Ohio Revised Code Chapter 2735 – Receiverships, including sections 2735.01 (Appointment of Receiver), 2735.02 (Qualifications of Receiver) and 2735.04 (Powers of Receiver).

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CONTACT: Jason V. Stitt

Legal Alert: Proposed Federal Rule on Waters of the United States

The terms “waters of the United States” and “navigable waters” play a critical role in defining the scope of federal programs that protect water resources nationwide.  These federal water protection programs have a direct and substantial impact on real estate development, construction activities, mining, farming and other commercial activities.

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CONTACT: Brian M. Babb

LEGAL ALERT: U.S. EPA Issues Final Rule Recognizing ASTM E1527-13 Standard for Phase I Environmental Site Assessments

On December 30, 2013, U. S. EPA issued a final rule, 40 CFR 312.11, amending the “all appropriate inquiry” (AAI) rules adopted under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recognize that the performance of a Phase I Environmental Site Assessment (ESA) under the new ASTM E1527-13 “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” (ASTM E1527-13) will satisfy the AAI requirements under CERCLA for innocent and bona fide prospective purchasers and contiguous property owners who are purchasing or leasing potentially environmental contaminated properties.  The effective date of this final rule is December 30, 2013. 

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CONTACT: Brian M. Babb

A SECOND UPDATE: HAS U.S. EPA PUT THE CART BEFORE THE HORSE?

As an additional update to a previous posting, on November 6, 2013, ASTM issued the updated standard for Phase I Environmental Site Assessments, ASTM E 1527-13, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

Should you have any questions or need guidance about EPA’s All Appropriate Inquiry Rules please contact Brian Babb at (513) 579-6963 or at bbabb@kmklaw.com.

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CONTACT: Brian M. Babb

An Update: Has U.S. EPA Put the Cart Before the Horse?

To update an earlier posting, please note that effective October 29, 2013, EPA has withdrawn the direct final rule for the Amendment to Standards and Practices for All Appropriate Inquiries published on August 15, 2013.

Should you have any questions or need guidance about EPA’s All Appropriate Inquiry Rules please contact Brian Babb at (513) 579-6963 or at bbabb@kmklaw.com

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CONTACT: Brian M. Babb

Legal Alert: Has U.S. EPA Put The Cart Before The Horse?

Probably the most widely used environmental standard to emerge in the last ten years is the “All Appropriate Inquiry” (AAI) Rules which dictate the level of scrutiny a prospective real property purchaser must undertake to protect itself from environmental liability due to pre-existing contamination on the property.  Since 2005, U.S. EPA had made it perfectly clear how the AAI Rules could be satisfied.  However, in a recent and somewhat bizarre rulemaking action, EPA has left purchasers wondering what really constitutes “all appropriate inquiry.”  The problem stems from EPA’s attempt to finalize changes to its AAI Rules which ties AAI compliance to another standard that has yet to be issued by a separate non-governmental entity. 

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CONTACT: Brian M. Babb

Pre-Start Construction Considerations in Ohio

The scenario of a developer who paid cash for a parcel of land and wants to get started on development and construction prior to the closing of the construction loan is fairly common.  However, under Ohio law a pre-start construction project creates difficulties for the title insurance underwriter to insure the priority of the mortgage over mechanic’s lien risk.  This is likely to result in more time and costs to provide the required title insurance and if not handled properly, it could jeopardize the financing for the project. 

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Some Communities Still Missing Out On The NMTC Financing Opportunity

While KMK continues to grow its expertise in leading New Markets Tax Credits financing deals for many types of significant projects and as we expand our work in EB-5 financing deals, P3s and PRIs, we are surprised by the number of communities in some parts of the country still unfamiliar with the tremendous financing horsepower of NMTCs.  Here is a quick highlight of this extremely valuable financing tool.

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CONTACT: Mark E. Sims

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