• 92.3% had at least one employee with a criminal conviction
• 47.8% had at least five employees with criminal convictions
• 16% of all employees had convictions after their date of employment
• 73% of post-employment convictions occurred after the first year of employment

The survey found that 43.6% of convictions were crimes against property, 20.3% DUI, 16.2% drug-related, 11.9% driving-related other than DUI, 13.1% crimes against persons, and 26.4% other. Medicare regulations bar employment of persons convicted of abusing, neglecting or mistreating nursing facility residents or misappropriating their property. However, the survey did not attempt to determine whether the victims of the person and property related crimes were residents of nursing facilities.

Hello Washington, we have a problem!

Jeffrey M. Sanders PLLC has more than 20 years experience in environmental law matters. We work with a number of other outside law firms representing lenders, borrowers, real estate developers, corporations, and insurance companies on a variety of environmental law issues. The legal issues range from regulatory compliance, risk evaluation, risk avoidance, and enforcement issues.  It is a highly complex and specialized area of the law that demands a high degree of legal expertise and experience.

This CD features a combination of songs specially written for this project and other previously unreleased tracks not available on any other album. Doors open at 7:30 pm and show begins around 8:30 pm.

Mountaintop removal is a type of coal mining that uses explosives to blast away the top of mountains so that coal companies can easily access coal veins. Soil and rocks are pushed over the side of the mountain, and bury streams, plants and trees. Mountaintop removal permanently destroys the landscape, and may ruin the drinking water supply for local residents.  Mountaintop removal is used in eastern Kentucky, West Virginia and east Tennessee.

No one is suggesting that coal mining be stopped in Appalachia. However, there are many alternative means of mining coal without completely removing the mountains. The other methods may require more workers and more machinery.

Because coal ash contains a lot of heavy metals, which are toxic to humans, U.S. EPA is currently considering whether to regulate coal ash as a special hazardous waste or, whether to manage it as a nonhazardous waste.   EPA published two different proposed rules last year.

When EPA prepared a cost-benefit analysis to estimate the financial impact of the two different rules, the agency apparently overestimated the benefits of recycling coal ash and underestimated the benefits of safe disposal. Three environmental groups are now charging that EPA skewed the numbers to favor a more liberal disposal rule for coal ash, as a non-hazardous waste. 

Here is the groups’ analysis of the regulatory impacts of the two rules [pdf] by the nonprofit Environmental Integrity Project, Earthjustice and the Stockholm Environment Institute’s U.S. Center at Tufts University.  

Jeffrey M. Sanders PLLC has more than 20 years experience in environmental law matters. We work with a number of other outside law firms representing lenders, borrowers, real estate developers, corporations, and insurance companies on a variety of environmental law issues. The legal issues range from regulatory compliance, risk evaluation, risk avoidance, and enforcement issues.  It is a highly complex and specialized area of the law that demands a high degree of legal expertise and experience.

If not, the transaction may incur unforeseen and unwanted environmental costs, such as legal fees, engineering fees, civil penalties, cleanup costs, and disposal costs.  Such incidental and unexpected costs may be far more than the original purchase price of the property.  Thus, a potential purchaser must understand that the federal Superfund program imposes strict and joint liability on past and present owners, operators, generators and transporters for the disposal of hazardous substances.

This broad liability scheme explains why most businesses want to purchase and develop virgin farmland for new industrial and manufacturing plants rather than re-use existing facilities. Still in terms of real estate, almost nothing entices a potential purchaser as a prime piece of industrial property located near established connections to transportation routes, low cost, plentiful electrical and water supplies, and inexpensive labor costs.  Recognizing the legal obstacles to re-use and re-development of existing industrial properties, Congress passed the Small Business Liability Relief and Brownfields Revitalization Act (the “Act”) in 2002. The Act was intended to help governmental entities and third parties clean up and revitalize real property with low levels of pollution. 

The Act provided a new legal defense to CERCLA liability for a purchaser that does not contribute to or otherwise aggravate pre-existing contamination at a Brownfield site. Again, all improper disposal of hazardous substances at the site must have occurred before the purchaser’s acquisition of the property.

As Ronald Reagan said, “The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help.” Thus, the Act and its regulations have caused a great deal of confusion and disagreement over what does and does not meet the duty of reasonable care in purchasing a Brownfield property.

While the Act has several key provisions, let’s focus on the exemptions to federal Superfund liability given to Bona Fide Prospective Purchasers (“BFPP”) of contaminated property.  A BFPP is a party, or tenant of that party, who acquires ownership of a Brownfield after January 11, 2002, the enactment date of the Act. The BFPP defense is nullified if the purchaser pollutes the property after taking ownership or otherwise fails to comply with the BFPP regulations.

Until recently there was no reported judicial interpreting the BFPP defense. Now, a federal judge in South Carolina has written a memorandum opinion on what must be proven by a purchaser of contaminated property in court to establish the BFPP defense and avoid CERCLA liability. The case is Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., No. 2:05-cv2782-MBS, 2010 WL 4025885 (D.S.C. Oct. 13, 2010).[1] It is noteworthy that Ashley is a sophisticated and well-funded Brownfield developer, and therefore should have been able to establish the BPFF defense by a preponderance of the evidence. Unfortunately, that did not happen and the court allocated Ashley 5% liability for the $8 million cleanup.

The logic and standards in the district court’s opinion will probably be followed by other federal courts in this area of the country that look at the BFPP defense.  Thus, it is worthwhile for every potential purchaser of a Brownfield site to read the opinion before signing a sale contract.

In Ashley II, the district court looked at the requirements of the BFPP defense found in U.S. EPA’s regulations and then determined via the evidence whether the actions taken by the prospective purchaser met the regulatory requirements.  Below are the requirements of the BFPP defense and a summary of the evidence that the South Carolina district court used to make its ruling that the defense was not available to the purchaser of the contaminated property:  

1. BFPP undertook “all appropriate inquiry” (AAI) before acquiring title to the property. 

The district court said, “What is important is that [the new owner] acted reasonably; it hired an expert to conduct an AAI and relied on that expert to perform its job properly.” 

The bottom line is that a prospective purchaser must hire an experienced, qualified environmental professional to perform an AAI using the most current standards accepted by U.S. EPA.  As an aside, the greater the potential environmental liabilities found at a brownfield site, the higher level of expertise that a BFPP needs in an environmental professional.

1. BFPP provided all legally required notices with respect to the hazardous substances found on the facility. 

The district court did not discuss this element of the BFPP defense in its ruling, as there were no legally required notices related to the brownsfield property.

The bottom line is that a BFPP must document all newly discovered hazardous substances found on the property and timely report them to the appropriate regulatory agency in writing.

1. BFPP exercised appropriate care by taking reasonable steps to stop any continuing release, prevent any threatened future release, and prevent or limit human, environmental, or natural resource exposure to previously released hazardous substances.

The district court looked at U.S. EPA’s Interim Guidance on BFPP Status, which provides that the AAI will most likely inform the BFPP as to the nature and extent of contamination on the property and what might be considered reasonable steps regarding the contamination, i.e., how to stop continuing releases, prevent threatened future releases, and prevent or limit human, environmental and natural resource exposures.

The bottom line is that a BFPP must take reasonable action to abate an actual or threatened release of a hazardous substance at the site.  Just as important, a BPFF cannot abandon or lessen such efforts, once undertaken.

1. BFPP gave full cooperation, assistance, and access to persons authorized to conduct a response action or natural resource restoration.

The bottom line is that a BFPP must be able to prove it provided full cooperation, assistance, and access to U.S. EPA and remediation contractors working at the site.

1. BFPP complied with all land-use restrictions and does not impede the effectiveness of any institutional controls at the facility.

The new owner’s environmental engineer testified at trial that there were no land use restrictions or unusual institutional controls in place at the site and that the new owner was in compliance with any controls in place, and his testimony was not contradicted. That testimony satisfied the court that the new owner complied with this element of the BFPP defense.

The bottom line is that a BFPP must honor land-use restrictions at the site imposed by U.S. EPA or other regulatory agency and cannot impede institutional controls instituted at the Brownfield site.

1. Complies with information requests and administrative subpoenas under CERCLA.

The new owner’s environmental engineer testified that the new owner had complied with all EPA information requests and subpoenas, and an example of the new owner’s response to a U.S. EPA information request was introduced at trial. That testimony and evidence satisfied the court that the new owner complied with this element of the BFPP defense.

The bottom line is that a BFPP must comply with U.S. EPA’s requests and cannot ignore them. This task may sound simple, but it is usually one of the most burdensome tasks known to mankind and is often times impossible for a company to complete on time.

1. BFPP must establishes that it is not potentially liable for response costs; is not affiliated with a potentially responsible party (PRP) through a family, contractual, corporate, or financial relationship; and, is not the result of a reorganization of a business entity that was potentially liable.

The court hammered the new owner because it had granted contractual releases and environmental indemnity agreements in favor of the sellers.  The district court found that the new owner had released and indemnified the sellers at the time of disposal from environmental liability for contamination at the site and had “attempted to persuade EPA not to take enforcement action to recover for any harm at the Site caused by [the indemnitees].”   

The district court concluded that by indemnifying the sellers, the new owner had contractually accepted the risk that the sellers might be liable for payment of response costs. The district court further reasoned that the new owner’s “efforts to discourage EPA from recovering response costs covered by the indemnification reveals just the sort of affiliation Congress intended to discourage.” As a result, the new owner’s affiliation with the past owner of the contaminated property nullified the BFPP defense.  Without the BFPP defense, the new owner was stuck with the Superfund liabilities caused by the sellers. 

The bottom line is that a BFPP must prove that is not affiliated with a PRP, as per U.S. EPA’s regulation.  That task may be difficult to prove by a preponderance of the evidence in a sophisticated transaction among multiple parties that are redeveloping or re-using a Brownfield property.  Almost every single entity involved in such a transaction wants contractual indemnification provisions placed in every transactional document.  A district court will closely scrutinize each of these provisions when the new owner raises a BFPP defense to Superfund liability.

Conclusion

Purchasing a Brownfield property has many advantages over building a new plant in a green space. What happens after sale acquisition and the re-use of the property is critically important to establishing and holding the BFPP defense.  It makes no sense to put such a sophisticated deal together without making sure that the BFPP defense does not evaporate into thin air when exposed to the light of judicial examination and inquiry.

Jeffrey M. Sanders PLLC has more than 20 years experience in environmental law matters. We work with a number of other outside law firms representing lenders, borrowers, real estate developers, corporations, and insurance companies on a variety of environmental law issues. The legal issues range from regulatory compliance, risk evaluation, risk avoidance, and enforcement issues.  It is a highly complex and specialized area of the law that demands a high degree of legal expertise and experience.

A project may not start until all necessary approvals are received from the KDOW. For questions concerning the WQC process, contact the WQC section at 502/564-3410.

If the project will disturb one or more acres of land, or if the project is part of a larger common plan of development or sale that ultimately will disturb one or more acres, you will also need to complete a Notice of Intent for general permit coverage for storm water discharges associated with construction activities (NOI-SWCA). 

You can find the forms for Kentucky Pollution Discharge Elimination System (KPDES) at http://www.water.ky.gov/homepage_repository/kpdes_permit_aps.htm or https://dep.gateway.ky.gov/eForms/default.aspx?FormID=7.   An applicant must return completed forms to the Floodplain Management Section of the KDOW.

Attorneys Storms is in a pickle caused by an apparent lack of judgment. Not exactly the type of conduct that a large multi-state utility should be looking for in an attorney, or perhaps it is.  Let us all hope NOT!

What we don’t know at this point in time is what issues Duke Energy had pending before the Indiana public service commission during this period of time, and what role, if any, Attorney Storms had in the matters pending before the state agency. 

Matters that typically are before the commission are rate increases, cost recoveries, and disputes over service areas — all of which involve many millions of dollars in disputes for the utility. So, . . .

We as a member of the public have a right to know. The Indiana inspector general’s office accused Storms of breaking state ethics law by “having a financial interest in the outcome of matters involving” the utility while still working at the state, according to the complaint released Friday by the state ethics commission.  This is a VERY SERIOUS charge, and if true, warrants a severe penalty for an attorney admitted to the Indiana Bar. If this is all true, then Duke Energy corporate folks should bear some responsibility and punishment for what occurred here. 

The ethics complaint accuses Storms of “failing to notify his appointing authority of a potential conflict of interest” and of failing “to make full disclosure of any related financial interest” in matters before the commission. Stay turned for more information in the future. It is a sad story for everyone involved, including the rate payers of Indiana.

Hankinson has spent 30 years working on environmental issues in the private, public and non-profit sectors. The Florida native has brought together industry, government and stakeholder groups to form partnerships to restore ecosystems across the southeast. He has worked on the National Estuary Program in the Gulf of Mexico and directed the development and implementation of a water quality protection plan for the Florida Keys National Marine Sanctuary. He has over 10 years experience overseeing the restoration and protection of the St. Johns River system in Florida. Hankinson currently serves as an environment and conservation lands consultant, advising on land conservation, strategic land use decision-making, and constructive environmental management and policy projects across the Southeastern United States. He served as regional administrator of EPA region 4 from 1994-2001.

As the executive director of the Gulf Coast Ecosystem Restoration Task Force, Hankinson – who will report directly to Administrator Jackson – will coordinate interagency efforts, oversee staff and outreach efforts develop a regional ecosystem restoration strategy and ensure that science underpins the task force’s efforts. Texas, Louisiana, Mississippi, Alabama and Florida will each have a state representative on the task force. The representatives will be selected by the governors of each gulf state and then appointed by President Obama, along with one senior official from each of several federal agencies, including the departments of Defense, Justice, Interior, Agriculture, Commerce and Transportation. The task force will also integrate local stakeholders, representatives from affected tribes, and the scientific and academic communities. The task force will have a presence in each of the gulf states, in addition to Washington, D.C.

Administrator Jackson will hold the first meeting of the Gulf Coast Ecosystem Restoration Task Force on November 8 in Pensacola, Fla. More information about that meeting will be announced as it becomes available.

View President Obama’s executive order: http://www.whitehouse.gov/the-press-office/2010/10/05/executive-order-gulf-coast-ecosystem-restoration-task-force

EPA estimates that cutting air pollution from cement kilns could result in up to 2,500 premature deaths avoided each year. The EPA also estimates benefits from cutting this air pollution of up to $18 billion annually, starting in 2013 when the rule takes effect. Some cement kilns are huge mercury polluters. For example, the Ash Grove Cement Co. in Durkee, Oregon released more than 1,500 pounds of mercury from its stacks in 2008. According to the EPA, the new rule will:

• Cuts 16,600 pounds of mercury, roughly 92%
• Cuts 11,500 pounds of particulate matter, roughly 92%
• Cuts 5,800 pounds of hydrogen chloride, roughly 97%
• Cuts 10,600 pounds of total hydrocarbons, roughly 83%

Mercury is a dangerous neurotoxin that interferes with the brain and nervous systems, resulting in birth defects, loss of IQ and developmental problems. Particulate matter causes serious health impacts on lungs and breathing, including decreased lung function, aggravated asthma, irritation of the airways, coughing or difficulty in breathing. Hydrogen chloride also causes respiratory problems such as coughing, irritated nose and throat, and heart problems.