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

Apr 26, 2023

Lawsuit Challenges USFS CWA Permits for Aerial Firefighting

The U.S. Forest Service (USFS) is seeking Clean Water Act (CWA) Permits from the EPA for anticipated discharges from aerial firefighting efforts that may reach federal water. The Plaintiffs in the suite, Forest Services Employees for Environmental Ethics (FSEEE) v. U.S. Forest Service, allege that, because the Permits may take up to two and half years to issue, the current aerial discharges of flame retardants are an unpermitted point source discharge that can damage waterways and aquatic species. FSEEE has filed a Motion for Summary Judgement asking the Court to issue a wide-ranging injunction that would forbid further discharges until… Read more

Apr 11, 2023

Bill Introduced in the House to Finance Utilities’ LSL Replacement Efforts

In early March, Democrats Dan Kildee (D-MI) and Senator Michael Bennett (D-CO) reintroduced their “Financing Lead Out of Water (FLOW) Act,” which would amend the Federal Tax Code to allow public water systems to pay for replacement of privately owned Lead Service Lines (LSL) with tax-exempt bonds. Currently, in order to qualify for tax exempt bonds, water system replacement efforts by large municipalities must pass the IRS’ “private business use test” to access tax-exempt bonds. Under the test, municipalities must certify that the funds will not be used to benefit private business above a certain threshold. The FLOW Act would… Read more

Mar 27, 2023

EPA Publishes Draft “Cumulative Risk” Assessment Procedures Under TSCA

The EPA has release a proposed guidance document for conducting cumulative risk assessments (“CRA”) under the Toxic Substances Control Act (“TSCA”). The guidance is designed to assist the EPA to characterize and quantify the combined risk to health and/or the environment from multiple chemical agents and/or stressors. Under the Biden Administration, consideration of cumulative risk is a top priority for the EPA in its efforts to address environmental justice concerns. The draft guidance notes that disadvantage communities often face multiple pollutants from multiple media which overlap with the adverse effects of poverty and other socioeconomic factors. However, it takes a… Read more

Mar 13, 2023

EPA Proposes Strict Clean Water Act Treatment Technology for Coal-Fired Power Plants

On March 8th, the EPA proposed an Effluent Limitation Guidance (ELG) rule designed to meet a “zero discharge” goal for the steam electric power generating point source category. The proposal includes requirements for advanced membrane treatment technology which the EPA believes is necessary to meet the CWA’s definition of “best available technology” required by the ELG. ELGs are technology based treatment mandates that the EPA adopts to represent the greatest pollution reductions an industry can achieve through economically feasible methods. The EPA’s proposed rule will also set tighter discharge standards for flue-gas desulphurization wastewater, bottom ash transport water, and combustion… Read more

Mar 3, 2023

Bills Pending in the New York City Council to Enact Laws Regulating the Purchaser Approval Processes of Cooperatives

Cooperative boards should be aware that there are three bills pending before the New York City Council that, if passed, will impose substantial requirements on the purchaser application process in all cooperatives in New York City with 10 or more apartments. Boards should consider whether to reach out to their council members, the members of the Committee on Housing and Buildings listed below, or the Mayor to express their views on the wisdom of the proposals. The bills are Intro. 0914-2023, Intro. 0915-2023 and Intro. 0917-2023. Under current law, Boards must abide by all federal, state and city anti-discrimination laws,… Read more

Feb 28, 2023

Negotiating the Use Provision in a Commercial Lease

One of the most overlooked but vital provisions when negotiating a commercial lease is the “use” provision. The “use” provision should be carefully negotiated at the letter of intent stage to avoid any subsequent negotiation problems down the line. Specifically, the landlord and tenant must understand the differences in the legal impact between (1) the permitted use clause, (2) the exclusive use clause, and (3) the prohibited use clause. As I will show you in the details below, it is critical that these provisions be carefully reviewed and negotiated by lawyers for both sides that have specific expertise in this… Read more