Scott Steady is a Partner in the Real Estate and Environmental & Land Use practice groups. He has extensive experience in the resolution of land use, local government, and environmental issues. He also excels in developing and ...
On October 6, 2014, the Environmental Protection Agency ("EPA") adopted a final rule which will eventually eliminate one of the two recognized ASTM International standards to conduct environmental site assessments, which were designed to comply with EPA's "All Appropriate Inquires Rule" ("AAI"). Complying with the AAI rule is required to claim protection from CERCLA (Superfund) liability as a bona fide prospective purchaser, contiguous property owner, or innocent landowner. Effective October 6, 2015, ASTM International's Standard E1527-05 will not be recognized as ...
Florida Department of Environmental Protection (FDEP) touts the success of the State's Brownfields Redevelopment Program. Since its inception in 1997, Florida's Brownfields Redevelopment Act ( Florida Statutes Sections 376.77 -376.85) has been viewed as successfully encouraging the redevelopment of abandoned or underutilized industrial and commercial property. The Brownfield's program provides a mix of regulatory and financial incentives to encourage the voluntary cleanup and redevelopment of qualified sites. FDEP recently released its Annual Report on the ...
On May 22, 2014 the Florida Supreme Court in South Florida Water Management District v RLI Live Oak, LLC, No. SC12-2336 ruled that in circumstances where a Florida Statute authorizes a state governmental agency like the Water Management District to recover a civil penalty in a judicial forum, then the agency must only prove the violation by a preponderance of the evidence. In this case the applicable statue did not specify the agencies burden to prove the violation. The Supreme Court distinguished its previous ruling in Department of Banking & Finance V Osborne Stern & Co. 670 So. 2d 932 ...
Federal Court of Appeals strikes down a portion of the EPA's rule limiting a Court's authority for imposing civil fines for equipment failures. While upholding portions of EPA's new rules for air toxic emissions for cement kilns, in a ruling dated April 16th the District of Columbia Court of Appeals struck down the provision that limited the Federal Courts from imposing civil penalties involving citizen suits for violations of the Clean Air Act for unavoidable equipment malfunctions. The Federal Courts previous 2008 decision finding unlawful EPA's earlier attempt to "exempt ...
In a news release dated March 25th 2014, EPA and the Army Corps outlined a new proposed joint rule to clarify the scope and definition of the "waters of the United States" under the Clean Water Act in an attempt to address issues raised in two separate Supreme Court cases decided in 2001 and 2006. The proposed rule clarifies what upstream waters, including natural and artificial wetlands, tributaries and other types of waters are regulated due to their relationship with downstream waters and watersheds. As the news release provides, the proposed rule clarifies that the following are ...
As stated in the Federal Register, effective December 30, 2013, the "All Appropriate Inquiry Rule," found at 40 CFR Part 312.11 was amended to add as paragraph (c)- a reference to ASTM International's E1527-13 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process." ASTM E1527-13 was included to "make clear that persons conducting all appropriate inquires may use the procedures included in this standard to comply with the All Appropriate Inquires Rule." Now both ASTM E1527-05 and E1527-13 have been found by the EPA to comply ...
Following new state legislation granting the Florida Department of Environmental Protection ("FDEP") the authority to establish one statewide rule for the environmental resource permitting ("ERP") program, FDEP in early October finalized the new rule -Chapter 62-330. Previously, Florida's five water management districts implemented different versions of rules addressing impacts to wetlands and surface waters. An ERP permit is required for certain activities that cause water pollution or affect wetlands and other surface waters. The new rule is now applied statewide ...
Earlier this month, the State of Florida announced it will be filing a lawsuit in September in the U.S. Supreme Court seeking to limit Georgia's consumption of water from the Chattahoochee and Flint River Basins through an injunction. Florida claims that the unchecked consumption of the upstream water flows have negatively impacted Apalachicola Bay by increasing the salinity of the Bay, particularly in the summer and fall months. The reduction in the salinity is blamed for the reduction in the oyster population. Apalachicola Bay produces 90% of Florida's oyster supply and 10% of the ...
The recent Supreme Court case Koontz vs. St. Johns River has generated a lot of commentary and debate in the legal community and speculation concerning the ramifications of the case on various land use permitting scenarios. Oversimplifying the facts and legal theories, the Supreme Court extended previous rulings to a situation whereby the governmental entity denied a request/permit for the failure of the applicant to agree to "suggested" alternative concessions proposed by the local government. The alternative concessions included mitigation measures, conservation ...
The American Lung Association recently issued a Report entitled, "State of the Air 2013," which looks at levels of ground-level ozone and particle pollution across the United States for the period 2009-2011. The Report uses data collected by States, tribes and federal agencies from local air monitoring devices. A variety of information about the Report can be found here. The Report notes that stronger standards for pollutants and sources of pollution have reduced ozone and particulant pollution over the past few decades. From 1970, just before the enactment of regulatory controls ...
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