Businesses are faced with the ever-increasing environmental regulation. Business practices and uses of items that appear to have no attendant legal application may subject a business to civil and criminal liability unless proper precautions are taken and compliance is obtained. The federal Environmental Protection Agency, the Commonwealth of Kentucky Energy and Environment Cabinet Department of Environmental Protection, and local governmental and quasi-governmental agencies have significant hammers to require one or one’s business to remediate contaminated property or restructure certain processes.

The federal Environmental Protection Agency, the Commonwealth of Kentucky Energy and Environment Cabinet Department of Environmental Protection, and local governmental and quasi-governmental agencies have significant hammers to require one or one’s business to remediate contaminated property or restructure certain processes.

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In June 2014, the United States Environmental Protection Agency (“EPA”) proposed several new greenhouse gas regulations intended to reduce carbon dioxide emissions produced by electricity generating sectors. The EPA’s stated goal is to reduce overall carbon emissions in the nation by 30 percent by requiring each state to meet a specific emission reduction goal. Under the proposed regulations, Kentucky would be required to reduce carbon dioxide emissions 18 to 20 percent by 2020.  If enacted, the regulations would have the greatest impact on the production of coal and coal related industries. Currently, Kentucky is the third largest producer of coal in the United States and the coal industry is a huge economic generator in the Commonwealth. The Kentucky Energy and Environment Cabinet estimates that in 2013 severance taxes on coal production were $212,443,519.59, and overall, the coal industry directly contributes billions of dollars to the economy of Kentucky. Thus, the proposed regulations have the potential to have a significant effect on Kentucky business and the economy.

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On June 10, 2014, President Obama signed into law the new Water Resources and Reform Development Act of 2014 (“WRRDA”). The Act’s primary purpose is to improve America’s water infrastructure through the funding of construction programs and projects. Introduced in 2012 by Senators Barbara Boxer (D) and David Vitter (R), the bill garnered unusual bi-partisan support. The WRRDA is also noteworthy because of something the Act is missing. No earmarks. As noted by Speaker John Boehner (R), “this is quite a departure for a bill whose claim to fame -or infamy, as it were – was being saturated with earmarks.  Hundreds of them.” Of significant importance, the WRRDA provides an avenue for the use and acceleration of private investment. [Read more…]

I will be speaking on “Environmental Issues in the Foreclosure Process” at the seminar presented by National Business Institute. I will be specifically addressing: (1) Environmental Conditions at Foreclosed Properties; (2) Assessment/Reassessment of Environmental Risk; and (3) Liability Protection for Lenders. The seminar will be held on April 8, 2014 at the Hilton Garden Inn Airport, 2735 Crittenden Dr., Louisville, KY. For more information and/or registration please go to http://www.nbi-sems.com/Details.aspx/R-65441ER . I hope that you can join me along with other presenters who will address foreclosure matters outside of the environmental arena.

As part of the Commonwealth of Kentucky Brownfield’s Initiative, the Commonwealth of Kentucky Legislature has recently passed new law that affords certain environmental protections to present owners or prospective purchasers of real property. KRS 224.1-415 addresses conditions which a property owner is not liable for remediating contamination at the real property.

The threat and scope of environmental liability is so great that one can actually be required to take timely and costly corrective action to remediate contamination that may not even have been caused by that individual or entity.  The presence of contamination, or the perception that contamination exists, may significantly diminish the property’s value.  This threat has thwarted many transactions. [Read more…]