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.

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. 

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.

To update an earlier posting, please note that effective October 29, 2013, EPA has withdrawn the direct final rule for the Amendment to Standards and Practices for All Appropriate Inquiries published on August 15, 2013.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

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. 

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. 

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.

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. 

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. 

The Ohio General Assembly recently passed a new law that will exempt new home builders from liability under the Ohio Consumer Sales Practices Act and its “treble damages” provisions.  The new law, known as the Home Construction Service Suppliers Act (“the Act”), became effective August 31, 2012, and applies to all “home construction service contracts” entered into after that date.  Previous court decisions have held that a new home builder is a “supplier” under the Consumer Sales Practices Act.

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