Back on August 29, 2023, U.S. EPA issued the rule to conform its regulations to the ruling of the U.S. Supreme Court in Sackett v. EPA which significantly reduced the number of wetlands that are federally protected under the Clean Water Act (CWA). (See, prior post discussing Sackett) The Court limited federal jurisdiction to only wetlands that are adjacent to navigable waters and those with a continuous surface connection to relatively permanent waters adjoining navigable waters. Following the Supreme Court’s decision in SWANCC v. U.S. ACOE, Ohio enacted protections for so call ..read more

On February 8, 2024, U.S. EPA proposed two new significant regulations that would expand its authority to require cleanup of per- and polyfluoroalkyl substances (PFAS) under the Resource Conservation and Recovery Act (RCRA).  The scope of the proposed regulations and the potential facilities affected are discussed below. Background on RCRA Program To understand the potential scope of the new proposed regulations it is important to understand two basic aspects of regulatory frameworks under RCRA. Subtitle C (Management of Hazardous Waste)– Under Subtitle C of RCRA, EPA regulates hazardous ..read more

On February 16th, Ohio launched the All Ohio Future Fund which provides $750 million in funding to assist communities with infrastructure costs in order to create project-ready economic development sites. The purpose of the funding is to attract new businesses or grow existing Ohio businesses. It is not meant to be a job retention program. What type of funding is available? The money will be awarded as 0% interest loans which are “partially forgivable” (although the program guidelines indicate grants may be awarded on a “case-by-case” basis). There is no minimum or maximum amount of funding a ..read more

While U.S. EPA is poised to issue a series of federal regulations related to PFAS and impacts to the environment, it is the states that are taking the lead on regulating the presence of Per- and polyfluoroalkyl substances (PFAS) in consumer products. Such regulations are forcing manufacturers to reach back into their supply chains to verify their products do not contain PFAS. The breadth of the state regulations related to PFAS in consumer products shows that the focus on exposures to such chemicals is not just limited environmental exposures. Personal Injury Claims Related to PFAS Exposure Th ..read more

In July 2023, the Ohio Legislature injected an additional $350 million into the Ohio Brownfield Remediation Program (OBRP) due to the success of the program in the prior two years. At the end of the first cycle of funding, the Program was significantly oversubscribed. Therefore, it was anticipated there would be more projects in the queue for the second cycle of funding in FY24 and FY 25. However, based upon information released by the Cuyahoga Land Bank, the first round of the OBRP was massively oversubscribed just from Cuyahoga County alone. The demand for grant funding continues to demonstr ..read more

There is general awareness of the need to perform environmental due diligence on virtually any transaction that involves commercial/industrial property. However, even with such general awareness missteps or lack of attention to detail during the process can risk exposing a purchaser or new tenant to significant liability. Having been involved in counseling on environmental due diligence for hundreds of properties, here are four of the most common issues/questions that arise during the environmental due diligence process. As Buyer, can I rely on Seller’s prior Phase I reports and simply avoid s ..read more

In July, the Ohio General Assembly passed the Fiscal Year 2024-2025 Main Operating Budget which included another round of $350 million in funding for the Brownfield Remediation Fund. This second round of funding builds up on the very successful launch of the program in the prior State budget. While the structure of the program largely remains the same, the Legislature did make some notable changes. The most significant changes are the following: Lead Applicants– Rather than applications being directly submitted to the Ohio Department of Development (ODOD), the Legislature required all applica ..read more

On August 29, 2023, the United States Environmental Protection Agency (U.S. EPA) and the Army Corps of Engineers (ACOE) issued a direct final rule without public comment amending the definition of the “Waters of the United States” (WOTUS) which governs the scope of federal jurisdiction under the Clean Water Act (CWA). U.S. EPA issued the rule to conform its regulations to the ruling of the U.S. Supreme Court in Sackett v. EPA which significantly reduced which wetlands are federally protected. The Court limited federal jurisdiction to only wetlands that are adjacent to navigable waters and tho ..read more

On March 14th, U.S. EPA released its advanced pre-publication notice of proposed rulemaking which, if finalized, will establish for the first time national drinking water standards for PFAS under the Safe Drinking Water Act (SWDA).  While many states have adopted drinking water standards, the U.S. EPA has yet to establish any national drinking water standards for PFAS.  The implications if this rule is finalized will be very significant as discussed below. What is the anticipated timing of the draft and final rule? The proposed rule has not yet been published in the federal register ..read more

On January 30, 2023, Phase 2 of the Biden Administration’s rule making revisions to Nation Environmental Policy Act (NEPA) were sent by the White House Council on Environmental Quality (CEQ) to the Office of Management and Budget (OMB). Once OMB completes its review the proposed rule will be published in the Federal Register for public comment. The proposed rules are expected to be released sometime this spring. According to the National Law Review, the Phase 2 rules are likely to be more controversial as they are expected to address: consideration of environmental justice, public participatio ..read more