Aug 3, 2023

EPA Criticized for Slow Response to WOTUS Ruling

The EPA is facing heavy criticism from Republican lawmakers, states, and industry groups for its “slow response” to the Supreme Court’s Ruling in Sackett v. EPA. After the ruling, which set out parameters for defining “waters of the United States,” the Army Corps of Engineers has ceased issuing jurisdictional determinations, which effectively halts the issuance of new 404 Permits. Industry groups have urged the EPA to issue an emergency rule in keeping with the Sackett decision on an expedited basis in order to allow the Corps to resume issuance of jurisdictional determinations. The Biden administration, however, appears to be keeping… Read more

Jul 20, 2023

Do Marijuana Smokers Have Special Rights in Your Co-op or Condo?

The possession and use of marijuana by persons who are at least 21 years old is now legal in New York, as is the sale of marijuana and other cannabis products by New York State licensed dispensaries. However, a number of our cooperative and condominium clients have asked whether they may ban the smoking of marijuana in their buildings, either because they find it bothersome or because they are concerned about the adverse health effects associated with second hand smoke. The smoking of marijuana in the public portions of buildings is subject to the same legal restrictions as the smoking… Read more

Jul 17, 2023

EPA and Army Corps to Issue New WOTUS Rule

EPA and Army Corps to Issue New WOTUS Rule

The EPA and the Army Corps of Engineers are planning to issue a rule narrowing the definition of “Waters of the United States” (WOTUS) to conform to the Supreme Court’s Sackett Ruling. Both agencies have suspended issuance of approved jurisdictional determinations (AJD) pending revised rules to reflect the Supreme Court’s decision. The Supreme Court’s May 25 decision significantly narrowed the scope of wetlands covered by the Clean Water Act to only those that are “indistinguishable” from adjacent, jurisdictional water bodies based on a “relatively permanent” surface-water connection. In addition to suspending the issuance of AJDs, the EPA has sought to… Read more

Jul 10, 2023

What To Do When You Receive a Lease Optimization Demand Letter

What to Do When You Receive a Lease Optimization Demand Letter

Cell site landlords across the nation are receiving lease “optimization” demand letters from contractors hired by their wireless cell site tenants effectively threatening early termination unless rent and other concessions are granted. The reasons given by the tenant can range from “our site on your property is not profitable”; “we have too many cell sites in your area”; “due to 5G, fewer cell sites are necessary and your site in on the chopping block”; all the way to “we need to lower the rent because of industry consolidation.” These odious letters often include landlord-hostile proposals such as if the landlord… Read more

Jun 28, 2023

New Georgia Procedure for Appealing Decisions of Lower Judicatories to State or Superior Court Takes Effect July 1, 2023

Georgia petition to review

Effective July 1, 2023, Georgia House Bill 916 (2022), the “Superior and State Court Appellate Practice Act,” will repeal and replace Georgia’s complex notice of appeal and certiorari review statutes (former O.C.G.A. §§ 5-3-1 et seq.; 5-4-1 et seq.) with a unified “Petition for Review” procedure for appealing cases from a lower judicatory to superior or state court. O.C.G.A. §§ 5-3-1 to 5-3-21. The new “Petition for Review” procedure is a single, modern, uniform, logical, and relatively simplified process for superior or state court review of lower judicial and quasi-judicial decisions. O.C.G.A. § 5-3-2(b)(1). Its purpose is to simplify the… Read more

Jun 20, 2023

EPA Proposes Reforms to New Chemicals Review Under TSCA

On May 16, 2023, the EPA proposed amendments to regulations that govern review of new chemicals under TSCA.

On May 16, 2023, the EPA proposed amendments to regulations that govern review of new chemicals under TSCA. Under TSCA, the EPA is charged with reviewing the potential risk of new chemicals before they enter U.S. commerce, and authorizes the EPA to put safeguards in place to protect human health and the environment. The proposed amendments would eliminate existing exemptions for PAFS and related compounds from the Pre-Manufacturing Notice (“PMN”) safety review for the manufacture of chemicals with low production quantities, environmental releases, or human exposures. The proposal would make new PFAS compounds categorically ineligible for these exemptions, and are… Read more

May 22, 2023

OMB Clears Hurdle for Regulation of Coal Ash Landfills

On May 4, 2023, the Office of Management and Budget (OMB) approved the EPA’s proposed new rule to regulate landfills containing coal combustion residuals (CCR). The new rule would close a regulatory gap left open by the EPA’s 2015 CCR rule which established groundwater monitoring requirements for CCR landfills that accepted ash after October 19, 2015. The 2015 Rule exempted surface impoundments at active facilities, and surface impoundments at all inactive CCR landfills. While it is not yet clear whether the agency will include provisions addressing inactive CCR landfills in its Legacy Surface Impoundment Proposal, which is set to be… Read more

May 16, 2023

It’s 6 P.M. – Do You Know Where Your Money Is?

The recent takeover of First Republic Bank by JP Morgan Chase briefly resurfaced the instability of the regional banking sector as front page news. For many, if not most people, the issue has largely become background noise, and a surprising number of cooperative and condominium boards have still not taken adequate steps to address it. This blog is a reminder that board members, who have not already done so, should at this point in time pay special attention to their fiduciary duty to safeguard and prudently invest their building’s funds. The starting point The starting point would be to identify… Read more

May 9, 2023

Future of “Durable” WOTUS Rule in Doubt

Future of "Durable" WOTUS Rule in Doubt

In a March 19 ruling in State of Texas, et al. v. EPA et al., a U.S. District Court for the Southern District of Texas granted Texas and Idaho’s Motions to block the Biden Administration’s “durable” definition of “Waters of the United States” (WOTUS). The purpose of the rule was to establish a durable definition of WOTUS grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience in protecting the Nation’s waters. In questioning the viability of the rule, Judge Brown noted that the final rule’s broad application of the… Read more

Apr 27, 2023

How A Hospital Can Assure That It Will Be Required To Pay Punitive Damages

During the federal fiscal year ending in September, 2022, the Department of Justice collected more than $1.7 billion in False Claims Act (FCA) settlements and judgments involving fraud in Medicaid, Medicare Advantage (MA) overpayments, unlawful kickbacks and substandard care. In our experience working with hospitals, the significant financial penalties associated with FCA violations usually provide a powerful incentive for the hospitals to engage in careful diligence in structuring the terms of acquisitions of physician practices, the structure of physician relationships, and physician compensation formulas in compliance with healthcare regulatory requirements so as to avoid exposure to liability for violations of… Read more