KMK Law Real Estate Blog

On October 22, 2019, the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) published their final rule repealing the 2015 “Waters of the United States” (WOTUS) rule.  The repeal will be effective on December 23, 2019.  The breadth of the WOTUS rule affects which water bodies and wetlands are subject to pollution protection under the federal Clean Water Act.  In late 2018, EPA and the Corps issued a proposed WOTUS rule to narrow the definition of WOTUS, and solicited public comment.  The new WOTUS rule is not expected to be finalized until 2020, and is ...

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 21^st 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. 

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.