Joseph Koncelik

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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…
There has been multiple blog posts over the history of this site tracking the long and arduous processing of defining federally protected waters under the Clean Water Act.  The U.S. Supreme Court has taken up the issue on multiple occasions, perhaps most significantly in Rapanos v. United States, 547 U.S. 715 (2006) where Justice Kennedy created the “significant nexus” test for determining whether streams and/or wetlands were protected under the Clean Water Act.  The plurality…
It is a fundamental tenant of financial planning that you need to hedge against risk.  Investors are always cautioned to diversify their portfolios (i.e. have a mix of stock, bonds and cash).  Further diversify by investing in both U.S. and foreign companies.  As you age, become more conservative in your investing to hedge against risk. With recent developments on climate change, many parallels exist between making decisions regarding regulations of greenhouse gases and financial planning. …
With headlines in the United States of intense wildfires out West and more frequent hurricanes hitting the Gulf and East Coasts, concern that the U.S. is already beginning to experience the impacts of climate change is growing.  While most recognize climate change is occurring, the debate over how to effectively address climate change by reducing greenhouse gas emissions rages on. The Washington Post recently noted carbon taxes have been cited by the United Nations as,…
You would think that the regulatory reach of the Clean Water Act(CWA), which was passed in 1972, would be well settled law.  However, recent litigation has demonstrated that this is certainly not the case. Which Wetlands and Streams are Protected? The U.S. Supreme Court has weighed in multiple times on which wetlands and streams are regulated under Section 404 of the Clean Water Act (CWA).  The Court’s most notable ruling is Rapanos, a plurality…
Since the sunset of the very successful Clean Ohio Brownfield Revitalization Program, brownfield redevelopment has slowed in Ohio.  At a time when the economy is finally doing well, and real estate development is in full recovery mode, brownfields are still being passed over for less costly redevelopment options. This past week, Representative Arndt introduced House Bill 737 (Click on link hb737_00_IN) which would incorporate the CERCLA Bona Fide Purchaser Defense into Ohio Law.  The Greater
In a much anticipated move, the Trump Administration has proposed the Affordable Clean Energy (ACE) rule as a replacement for the Obama Administration Clean Power Plan (CPP).  While the CPP was controversial from the start for it broad regulation of the power industry, the ACE rule will be controversial as it signifies a 180 degree turn from aggressive climate change regulation of the energy sector. Overview of CPP The CPP was finalized on October 23,…