There are a myriad of federal statutes that require your company to report a spill to any of the following:
Failure to report a spill can lead to an enforcement action as well as civil penalties. Also, failure to
On March 21, 2011, U.S. EPA issued final air toxic standards for industrial and commercial boilers. The rules regulated emissions of hazardous air pollutants (HAP) from industrial, commercial, and institutional boilers and process heaters located at major sources of HAP emissions (the "Major Source Boiler MACT"). The EPA also issued final rules regulating emissions
.jpg)
Governor John Kasich has not revealed his true feeling regarding the Renewable Energy Portfolio (called the Advanced Energy Portfolio Standard in Ohio) which mandates a certain percentage of electricity should be generated from renewable sources like solar, wind, biomass and others. Ohio’s RPS was instituted as part of Governor Strickland’s major energy legislation- S.B. 221.
While the Governor has not
The Ohio Department of Development working with the Ohio Water Development Authority (OWDA) has released their policies for use of the revamped low interest brownfield loan program. Under the program, private companies (among others) can get a low interest loan up to $500,000 for performing sampling (assessment) and up to $5 million for clean up.
As discussed
On April 5th, Ohio EPA Director Nally testified on the Agency’s proposed budget before the House Finance and Appropriations – Agriculture and Natural Resources Subcommittee. According to the Director’s Testimony, Ohio EPA is not asking for any fee increases. Ohio EPA’s proposed budget calls for a reduction of 11.8% for fiscal year 2012 and 13.8%
In 2000, Ohio originally voted to approve the Clean Ohio Fund as a $400 million dollar bond program. In 2008, the Clean Ohio Fund was reauthorized through a ballot initiative known as Issue 2. The ballot initiative was overwhelmingly approved in all 88 counties which extended the Fund with another $400 million dollars.
Clean Ohio is probably the most
In 1994, the State created the Voluntary Action Program (VAP) to promote voluntary clean up of industrial and commercial sites, including those currently utilized as well as brownfields.
By 1994 standards the VAP program was cutting edge. It utilized certified professionals (CPs) who performed the investigation and implemented clean ups to meet standards established by
Phase I environmental assessments have become the norm in virtually any commercial or industrial property transaction. Almost any financial institution will require a Phase I report prior to agreeing to finance a transaction.
In this regard, Phase I’s have become a commodity- A box that needs to checked off before a deal can go through. But buyer beware, beyond securing your financing you may not truly know the condition of your property. Or even worse, you may not secure the legal protections from environmental liability you intended by procuring your Phase I.
A recent U.S. EPA study evaluated the quality of 35 Phase I reports that were performed on brownfields in connection with federal grant funding. The Phase I reports were evaluated against basic requirements necessary to secure protections under the "All Appropriate Inquiries Rules (AAI)" (a shield from CERCLA liability for innocent purchasers).
"All Appropriate Inquiries"
Under federal law, in order to establish a shield from liability under CERCLA, a purchaser must, prior to the date of acquisition, perform "all appropriate inquiries" into ownership and uses of the property. In 2005, U.S. EPA finalized its rule establishing mandatory standards for conducting AAI to secure liability protection.
IG Evaluates 35 Phase I’s
In the study, the Inspector General evaluated the 35 Phase I reports to see if they met the required elements of the AAI rule. Not one of the reports met the U.S. EPA required elements (or alternative ASTM standard). Worse yet, the missing components were simply formalistic elements necessary for a Phase I to meet U.S. EPA standards. They did not evaluate the professional judgments in the reports which would be more prone to varying opinion. Aspects evaluated included:
In the opinion of the Inspector General, not a single one of the 35 reports evaluated adhered to all of the requirements set forth above.
The report is another example of the risks associated with hiring an environmental consultant to perform a Phase I. From my discussions banks don’t often evaluate the quality of the consultant or even whether the report meets the ASTM or EPA rule requirements.
What are the risks to the future property owners in the transaction? The Inspector General summarized the risks as follows:
Improper AAI investigations introduce risk that the environmental conditions of a property have not been properly or adequately assessed. Consequently, decisions about appropriate uses of redeveloped or reused brownfields properties may be based on improper assessments. Ultimately, threats to human health and the environment could go unrecognized.
Beyond the risks of the unknown conditions, you also could be jeopardizing the legal protections available under the AAI rule. The rule is very specific in mandating an ASTM or EPA regulatory compliant Phase I assessment before the legal liability protections kick in. Years later, when an issue arises, you may find you have no shield from liability due to an inadequate Phase I.
Recommendations:
Continue Reading Questions Persist Regarding the Quality of Environmental Assessment
As reported in the Columbus Dispatch, Ohio EPA has experienced a drop in revenue attributable to reduced fees collected associated with its various programs due to the recession. Governor Kasich has not proposed any fee increases to restore the loss in funding.
Fee increases are seen as additional direct taxes on business which runs counter to
Bay Village has been debating establishing a riparian setback for the last few years. The proposal which began with a 75 foot setback has now been scaled down to 25 feet. Yet the ordinance is still controversial and City Council decided to delay its vote enacting the provision.
The debate before Council was covered in