Archive for December, 2010

Two New Year’s Resolutions: Check for Radon and Don’t Bust a CFL Bulb

Much in the style of North Korea’s Dear Leader, the EPA has offered some on-the-spot guidance guaranteed to improve the living standards of our people in the New Year.


On December 30, 2010, the EPA issued a news release encouraging everyone to test their homes for radon.  January, it is suggested, is the perfect time to test, not only because it is National Radon Action Month, but because the winter’s cold temperatures mean it is likely that people will spend more time indoors with tightly shut doors and windows.

Radon is a gaseous radioactive element that is colorless, odorless, tasteless, and extremely toxic. According to the Surgeon General, radon is the second leading cause of lung cancer in the US, causing an estimated 20,000 lung cancer deaths a year. Find more information on radon testing here.

Photo by AZAdam. Some rights reserved.

CFL Bulbs

Lest you get rowdy on New Year’s Eve and intentionally or unintentionally begin to destroy the lighting in your home, be sure you’ve read over the EPA’s detailed recommendations for cleaning up a broken compact fluorescent light bulb.

Because fluorescent light bulbs contain a small amount of mercury, some of this mercury is released as mercury vapor when the bulb breaks. It will continue to release this vapor until the broken bulb is properly disposed of. Symptoms of inhaled mercury can be as subtle as headaches or mood swings, but higher exposures can result in kidney problems or even respiratory failure.

Heed these warnings and you’ll no doubt have a safe and happy New Year!

Is the EPA’s Regulatory Impact Analysis of the Coal Ash Rule Flawed?

Just over two years has passed since the Kingston, TN coal ash spill, but according to the Environmental Integrity Project (EIP), federal proposals to regulate coal ash dumps are still “being held up by concerns that stricter standards would depress markets for coal-ash recycling.”

Aerial view of Kingston ash slide. Photo by Tennessee Valley Authority. Some rights reserved.

In December of 2008, more than 1 billion gallons of coal ash slurry gushed from the TVA Kingston Fossil Plant’s broken dike and destroyed several houses before pouring into the Emory and Clinch Rivers, killing numerous fish and polluting drinking water in the area.

Coal ash (also Coal Combustion Residuals or CCR), which is made up of byproducts of the combustion of coal at power plants, is currently considered an “exempt waste” under the Resource Conservation and Recovery Act (RCRA, 42 USC 6901 et seq). But even the EPA acknowledges that the ash contains “contaminants like mercury, cadmium and arsenic associated with cancer and various other serious health effects.”

In the aftermath of the spill, realizing that “without proper protections, the contaminants in coal can leach into groundwater and often migrate to drinking water sources, posing significant health public concerns,” the EPA began the process of regulating coal ash disposal.

On June 21, 2010, the EPA published the Coal Combustion Residuals Proposed Rule, which sought public comment on two possible approaches for regulation under RCRA. Regulation under Subtitle C (40 CFR Parts 260-279) would treat coal ash as a hazardous waste, while regulation under Subtitle D (40 CFR Parts 239-258) would treat it as only solid waste (see the key differences between the options here). Needless to say, utilities are gunning for the less strict – and therefore less costly – option under Subtitle D.

Yesterday, however, EIP published a scathing press release, in which it accused the EPA of grossly overestimating the value of coal ash recycling in the Regulatory Impact Analysis for the proposed rule. While most environmentalists applaud the reuse of coal ash to make products such as concrete, cement, or wallboard, EIP is concerned that the overstated benefits could end up “stacking the deck in favor of the weaker regulatory option favored by industry,” as the EPA’s analysis implies that the higher costs of the stricter regulation may cause roadblocks to recycling the ash.

EIP worked along with Earthjustice and the Stockholm Environment Institute to re-evaluate the estimates in the EPA’s Regulatory Impact Analysis. You can read their report here.

SEC to Specialized Corporate Disclosers: Achtung Baby!

It’s been three months since we profiled Bono and his support for the provisions of the Dodd-Frank Act that require disclosure from public companies in the oil, gas, and mineral industries. Luckily for the U2 front man, the SEC has finally published proposed versions of the rules required by these sections of the Act.

Photo by james burke. Some rights reserved.

Specifically, the three rules cover the disclosure of (1) the use of conflict minerals originating in the Democratic Republic of the Congo or adjoining countries, (2) mine safety, and (3) payments to government entities for the purpose of the commercial development of oil, natural gas or minerals. Together, the SEC is referring to these as the “specialized disclosure provisions.”

In the two weeks since the SEC published the rules, already six law firms have published detailed and insightful memos discussing the key parts of the proposals. More memos will undoubtedly follow. To keep up with all further analysis, visit our Law Firm Memo search page. You can run a search for the text conflict minerals, or even set up a Daily Alert – using the same text string – to be notified when new memos on the topic are posted.

You can see the text of the original SEC proposals below. Comments on any of the three proposals should be submitted to the SEC on or before January 31, 2011.

Conflict Minerals

Mine Safety Disclosure

Disclosure of Payments by Resource Extraction Issuers

Will Controversial Expansion of Naval Activities Harm NW Whales?

Last week the Navy cleared one of several final hurdles facing their proposed operations expansion at the Northwest Training Range Complex (NWTRC) when NOAA’s National Marine Fisheries Service (NMFS) granted them permission to “take” marine animals incidental to their training activities. An article published in the Bellingham Herald last weekend explains why the plan for expanded operations has animal lovers up in arms.

Photo by Franco Folini. Some rights reserved.

The NWTRC is a stretch of ocean and airspace used for routine naval training that extends to 250 nautical miles west of the coast of Washington, Oregon, and northern California. The Navy is proposing to expand its operations to support future training activities and provide for range enhancements. Critics are quick to point out that these “activities” may include disruptive practices such as the dumping of hazardous materials and chronic noise from sonar testing.

In accordance with NEPA, the Navy has prepared an Environmental Impact Statement (EIS) reviewing and evaluating the potential environmental effects of these proposed actions and activities. The Navy finished the EIS (which included formal consultations with NMFS) and then the Navy reviewed the EIS (a process which smacks of conflict of interest), and decided to move forward to “continue to support and conduct current, emerging, and future training and research, development, test, and evaluation […] activities in the Northwest Training Range Complex.”

As part of the approval process, the Navy also had to apply to NMFS for authorization to “take” marine mammals incidental to these training activities. (In the context of marine mammals, the term “take” is a nice-sounding word that means to harass, hunt, capture, or kill. 16 USC 1362.) According to the aforementioned federal register notice in which NMFS issued their authorization, the Navy does expect some incidental harm to marine mammals from the sonars and underwater denotations that are part of the Navy’s routine training activities. Specifically, the Navy requested “authorization to take individuals of 26 species of marine mammals by Level B Harassment and 13 individuals of 9 species by Level A Harassment. […] No mortality of marine mammals is authorized incidental to naval exercises in the NWTRC.”

The authorization was based on findings that the takings will have a “negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses,” and was issued pursuant to NMFS’ recent final rule, which set forth general regulations governing the taking of marine mammals incidental to Navy activities in the NWTRC from October 2010 through October 2015.

However, such findings have not assuaged environmentalists’ concerns. Before the comment period expired, the Orca Network was urging fellow pro-Orca enthusiasts to give NMFS a piece of their mind. The National Resources Defense Council submitted a comment letter directly to the Navy, asking them, on behalf of twenty other environmental groups, to revise their EIS, “improving its impacts and alternatives analysis and establishing temporal and geographic protection zones to mitigate the harmful impacts of its training.” The comment letter was rich with evidence suggesting that the proposed expansion posed significant risk to whales, fish, and other wildlife.

Real vs. Fake: Which Christmas Tree is Greener?

While it may be too late to weigh in on this season’s holiday shrub decision, the New York Times reports that the verdict is in. And what does “the most definitive study of the perennial real vs. fake question” suggest?

Find out here: Comparative Life Cycle Assessment of Artificial vs. Natural Christmas

Happy Holidays!

The Greenest Tree? Food cans were used to fashion this Christmas tree, which was created by crewmen aboard the space station in 1973.

Icky Sickly Water Woes

Two recent news stories showcase the often uninvited residents of our nation’s water resources.

Photo by Some rights reserved.

Waterways through and surrounding the city of Boston have been receiving unwelcome and illegal dumps of raw sewage and other pollutants, according to a citizen lawsuit filed by the Conservation Law Foundation (CLF) in February of 2010. CLF alleges that defendant Boston Water and Sewer Commission’s (BWSC) “significant water-quality problems and programmatic deficiencies” are in violation of the Clean Water Act.

Then, yesterday, the EPA announced that the United States would be joining CLF’s case on the EPA’s behalf, seeking injunctive relief “in the form of significantly increased resources for BWSC to identify and expeditiously remove all illicit connections, implement stormwater Best Management Practices to mitigate concentrations of pollutants to the maximum extent practicable, establish programs necessary to meet permit conditions, and take actions necessary to mitigate and prevent [Sanitary Sewer Overflows].”

Since it’s winter, one shouldn’t need much more discouragement from taking a dip in the Charles, but just in case you want to know what you’re missing – the term “fecal” appears eight times in the complaint.

A few states down the coast, EPA administrator Lisa Jackson met with ten U.S. senators to discuss a recent report from the Environment Working Group that found chromium-6 (the “carcinogenic ‘Erin Brockovich chemical’”) in the drinking water of 31 out of 35 U.S. cities tested.

While the report claims that, despite its toxicity, the EPA “has not set a legal limit for chromium-6 in tap water,” the EPA was quick to disagree. A defensive statement released on Wednesday argues that the EPA “absolutely has a drinking water standard for total chromium, which includes chromium-6 (also known as Hexavalent Chromium), and we require water systems to test for it.”

Jackson’s slightly less defensive remarks on the senators’ meeting suggest that the EPA is moving quickly in response to the report. Though she maintains that “all public water facilities are in compliance with the existing total chromium standards,” she also laid out a series of steps “that the EPA will take over the coming days to address chromium-6 in our drinking water.”

Though most of the hubbub was centered around D.C., the highest levels of chromium-6 detected were actually in Norman, OK, Honolulu, HI, and Riverside, CA. You can track the status of the EPA’s chromium-6 risk assessment here.

You can review the status of BWSC’s stormwater permits and management reports here.

What the Tax Relief Bill Means for Renewable Energy Projects

Only last Friday did President Obama sign into law the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,” and already the law firm analyses are pouring in. Many firms have issued special memos on the less publicized provisions of the Act that affect renewable energy.

These provisions include:

  • The one-year extension of a program under Section 1603 of the American Recovery and Reinvestment Tax Act, which provides cash grants for qualifying renewable energy projects in lieu of traditional tax credits;
  • An extension of tax credits through December 31, 2011, for  ethanol, biodiesel, renewable diesel and alternative fuels; and
  • Allowance for a 100% depreciation bonus on qualified new equipment placed in service between September 8, 2010 and January 1, 2012.

Read about these provisions in detail here: Dewey & LeBoeuf client alert, Mayer Brown Legal Update, Milbank, Tweed, Hadley & McCloy Client Alert.

%d bloggers like this: