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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

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

Legal Alert – U.S. EPA Finalizes Regulatory Exclusion for Solvent Contaminated Wipes and Shop Towels

In an action designed to spare thousands of businesses from the high costs of hazardous waste disposal, U.S. EPA recently changed its rules to exclude solvent-contaminated wipes from hazardous waste regulation, provided the wipes are cleaned or disposed of properly.  After years of extensive study, EPA concluded that excluding most solvent-contaminated  wipes from strict hazardous waste regulatory controls would not subject either human health or the environment to elevated risks.  These federal rule changes will become effective in six months. 

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CONTACT: Brian M. Babb

Legal Alert: Clearer USEPA Guidance for Commercial and Industrial Tenants for Protection from Pre-existing Contamination Liability

On December 5, 2012, the United States Environmental Protection Agency (EPA) issued revised guidance to memorialize its position that commercial and industrial tenants can protect themselves from contamination liability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or commonly referred to as Superfund) by relying on an “all appropriate inquiry” of the ownership and uses of the property, timely performed by the landlord, or by timely performing the all appropriate inquiry themselves. EPA’s prior guidance did not indicate these statutory defenses were available to tenants. 

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Ohio Diesel Emissions Reduction Grant Program

Ohio EPA will award $10 million by May 2012 and another $10 million by fall 2012 to private and public sector entities for clean diesel projects.  Funded by the Federal Highway Administration, the grants are targeted to improve air quality and public health in areas of Ohio not currently meeting air quality standards by reducing diesel exhaust emissions, upgrading diesel fleets and promoting the use of alternative and cleaner burning fuels.  The funds can be used for transit and school  buses, snow plows, refuse collection trucks, long and short haul trucks, locomotives and highway construction equipment.

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CONTACT: Brian M. Babb

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