The Trump Administration has made it a priority to shift more responsibility to the states on enforcement.  On July 11, 2019, U.S. EPA released a memorandum to the Regional Administrators regarding federal and state enforcement.   The latest policy memorandum was a collaboration between U.S. EPA and State EPA Administrators.  The memorandum includes: Best Practices for Coordination between U.S. EPA and the states on enforcement; and Emphasizes the states primary role in performing inspections and taking…

The primary source of grant funding for brownfield redevelopment is the JobsOhio Revitalization Fund.  The program can provide up to $200,000 in grant money to fund Phase II environmental assessment work which is key to positioning brownfield properties for redevelopment.  Many times it is difficult to determine whether a project is viable on a brownfield property because the level of contamination is unknown.  Phase II assessment funds, whether under the old Clean Ohio Fund or…

Despite its limitations, most commercial and industrial property transactions rely on the Bona Fide Purchaser Defense (BFPD) to CERCLA as the principal means of protecting new owners from environmental liability.  While EPA has adopted the “All Appropriate Inquiry” (AAI Rule) to provide some clarity to the steps necessary to qualify for the defense, there is still aspects of the AAI Rule that are open to interpretation.  Therefore, court rulings on applicability of the BFPD can…

In February 2019, U.S. EPA released its action plan to regulate Per- and Polyfluoroalkyl Substances (PFASs).  The two most well-known PFAS chemicals are perfluorooctane sulfonate (PFOS) and perfluorooctonoic acid (PFOA). Consumer products have long used PFASs for things such as non-stick cookware, waterproof carpeting, clothing, and some firefighting foams.  While PFASs made great consumer products, it was later discovered that the chemicals don’t break down in the environment and they have been linked to possible…

On February 14, 2019, the IRS will hold a public hearing on its regulations governing Qualified Opportunity Zones.  The public comment period closed on December 28, 2018.  The IRS is expected to finalize regulations soon after the public hearing. One of the most notable comments received during the public comment period on the IRS regulations for Opportunity Zones (QOZ) came from the Deputy Director of U.S. EPA’s Office of Brownfields and Land Revitalization (See, epa_comments_on_qoz_regs)…

Generally, the Natural Gas Act (NGA) preempts a state’s ability to enforce its own state laws with limited exceptions.  The purpose of the NGA preemption of state law is to expedite interstate energy projects such as natural gas pipelines that could otherwise be entangled in state regulations in multiple jurisdictions. There are limited exceptions to the NGA preemption of state law. One such exception is the ability of states to exercise permitting authority under the…