Archive for March, 2011

Canada’s IP Office Follows US Lead on “Green” Patents

Photo by James Jordan. Some rights reserved.

Similar to changes made by the Green Technology Pilot Program, which was launched by the USPTO in late 2009, the Canadian Intellectual Property Office recently announced the approval of amendments expediting “the prosecution of an application when the invention is related to green technology.”

In line with “the Government’s priorities on science and technology, supporting the growth of small- and medium-sized businesses (SMEs), developing a clean energy economy and taking government action on global warming and capacity building,” the amended Canadian rules promise to fast-track patent applications that relate to “technology the commercialization of which would help to resolve or mitigate environmental impacts or to conserve the natural environment and resources.”

Canadian law firm Osler, Hoskin & Harcourt explains the changes in a recent Update.

Renewable Energy Permitting and Leasing on Tribal Lands

Photo by Mataparda. Some rights reserved.

About one month ago, the Department of the Interior’s Bureau of Indian Affairs (BIA) released draft regulations that aim to “increase the efficiency and transparency of the BIA approval process” for leasing tribal land, according to a supplement that was provided along with the proposed regulations to tribal leaders for review.

The draft regulations, if finalized, would add several subparts to the existing 25 CFR Part 162 (“Leases and Permits”), one of which subparts (Subpart E) lays out specific procedures for wind and solar energy project permitting and leasing.

More recently, Pillsbury law published an Advisory addressing the draft regulations, generally giving them their full support. Pillsbury points out that the large swaths of tribal land in the lower 48 states add up to more than 50 million acres, and that this land has the potential to generate 535 billion kWh/year of wind energy and 17,600 kWh/year of solar energy.

Current regulations, however, provide several roadblocks to such renewable energy projects, having to do with landowner consent, tax credits, and an outdated approval process. Yet the Pillsbury Advisory remains upbeat that the proposed changes will improve things: “If and when finalized, the [wind and solar resources] regulations should help spur renewable energy development by streamlining the federal approval process for such projects on tribal land.”

One hopes the goal of “transparency” is taken as seriously as “efficiency.” If done correctly, perhaps these new regulations will help to smooth over historically rocky relations between the DOI and Native American groups and prevent the federal approval of such controversial renewable energy projects on tribal lands.

As of today, two remaining tribal consultation meetings are scheduled for March 31st and April 6th, which you can track using the BIA calendar here. Once this consultation period is over, BIA hopes to have the proposed regulations published in the Federal Register by late summer of 2011, and finalized and effective by early 2012.

Last Week in Environmental Contingencies and Proceedings Disclosure – PRP Under CERCLA Edition!

As we posted a while ago, public companies must generally disclose material legal proceedings in their annual and quarterly reports to the SEC. Today we check back in with some recent filings to see who is disclosing what in the land of environmental liabilities. By now this has become a regular feature on the Green Mien, and we hope you enjoy it!


  • AMERICAN BILTRITE INC | Form 10-K | 3/23/2011

ABI has been named by the United States Environmental Protection Agency as a Potentially Responsible Party (“PRP”) within the meaning of the federal Comprehensive Environmental Response, Compensation and Liability Act, as amended, as to seven sites in six separate states. In addition, ABI has been named a potentially responsible party by the State of Maine’s Department of Environmental Protection with regard to two sites in Maine. See Note 8 of the Notes to the Consolidated Financial Statements set forth in Item 8 of this Annual Report on Form 10-K for additional information relating to these matters.

ABI has recorded a reserve of approximately $5.1 million, which represents a probable and reasonably estimable amount to cover the anticipated remediation costs at all sites, net of recoveries, based on facts and circumstances known to the Company at the present time.


  • ICAHN ENTERPRISES HOLDINGS L.P. | Form 10-K | 3/24/2011

Federal-Mogul [a majority interest in which is owned by Icahn] is a defendant in lawsuits filed, or the recipient of administrative orders issued, in various jurisdictions pursuant to the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, or CERCLA, or other similar national, provincial or state environmental laws. These laws require responsible parties to pay for remediating contamination resulting from hazardous substances that were discharged into the environment by them, by prior owners or occupants of their property, or by others to whom they sent such substances for treatment or other disposition. Federal-Mogul has been notified by the U.S. Environmental Protection Agency, other national environmental agencies, and various provincial and state agencies that it may be a potentially responsible party, or PRP, under such laws for the cost of remediating hazardous substances pursuant to CERCLA and other national and state or provincial environmental laws. PRP designation typically requires the funding of site investigations and subsequent remedial activities.

Many of the sites that are likely to be the costliest to remediate are often current or former commercial waste disposal facilities to which numerous companies sent wastes. Despite the joint and several liability which might be imposed on Federal-Mogul under CERCLA and some of the other laws pertaining to these sites, Federal-Mogul’s share of the total waste sent to these sites has generally been small. Therefore, Federal-Mogul believes its exposure for liability at these sites is limited.

Federal-Mogul has also identified certain other present and former properties at which it may be responsible for cleaning up or addressing environmental contamination, in some cases as a result of contractual commitments. Federal Mogul is actively seeking to resolve these actual and potential statutory, regulatory, and contractual obligations. Although difficult to quantify based on the complexity of the issues, Federal-Mogul has accrued amounts corresponding to its best estimate of the costs associated with such regulatory and contractual obligations on the basis of available information from site investigations and best professional judgment of consultants.

Total accrued environmental liabilities were $19 million and $22 million at December 31, 2010 and 2009, respectively. Federal-Mogul believes that such accruals will be adequate to cover its estimated liability for its exposure in respect to such matters. In the event that such liabilities were to significantly exceed the amounts recorded by Federal-Mogul, Federal-Mogul’s results of operations and financial condition could be materially affected. At December 31, 2010, Federal-Mogul estimates that reasonably possible material additional losses above and beyond its best estimate of required remediation costs, as recorded, approximate $44 million.

On December 1, 2000, a section of the lower Willamette River known as the Portland Harbor was included on the National Priorities List at the request of the U.S. Environmental Protection Agency (the “EPA”). While the Company’s Portland, Oregon manufacturing facility does not border the Willamette River, an outfall from the facility’s storm water system drains into a neighboring property’s privately owned slip. The Company and over 100 other parties have been notified by the EPA and the Oregon Department of Environmental Quality (the “ODEQ”) of potential liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). As of December 2010, more than 280 potentially responsible parties on and nearby the river have been asked to file information disclosure reports with the EPA. By agreement with the EPA, the ODEQ is charged with ensuring that all upland sites have “source control” to prevent future contamination to the river. A remedial investigation and feasibility study of the Portland Harbor is currently being directed by a group of potentially responsible parties known as the Lower Willamette Group (the “LWG”). The Company made a payment of $175,000 to the LWG in June 2007 as part of an interim settlement, and is under no obligation to make any further payment. A draft remedial investigation report was submitted to the EPA by the LWG in the fall of 2009; the final remediation investigation is expected to be completed in 2011. The feasibility study is underway, and a draft is expected to be completed by the LWG in 2011.


  • WINN DIXIE STORES INC | Form 8-K | 3/21/2011

Winn-Dixie is a potentially responsible party for environmental impairment under voluntary remedial programs at the following sites:

1. Constitution Road Drum Site, Location: Atlanta, GA – EPA

Reserve established $15,000.00.

2. BCX Tank Site, Location: Jacksonville, FL – EPA

Reserve established $40,000.00.

3. Ellis Road Site, Location: Jacksonville, FL – EPA

Winn-Dixie small quantity waste generator, 30 gal drum with 1% PCB waste. No reserve established.

4. Devils Swamp Site, Location: East Baton Rouge Parish, LA – EPA

Winn-Dixie is contesting its liability due to the small quantity of waste generated. No reserve established.

5. Peak Oil/Bay Drum, Location: Tampa, FL – EPA

Reserve established $60,000.00

6. Elmore Waste Disposal Superfund Site, Location: Greer, SC

Reserve established $100,000.00

Revising FERC’s Horizontal Merger Policies

Photo by Aidan Jones. Some rights reserved.

Law firm memos are abuzz with information on FERC’s recent Notice of Inquiry (NOI), which requests comments on whether – and how – to revise their approach to examining horizontal market power concerns.

The question of revision was sparked by last year’s Horizontal Merger Guidelines – a document issued jointly by the FTC and DOJ that set forth how those two agencies in particular will evaluate the impact of horizontal mergers on competition in various markets. The guidelines flesh out in what ways the agencies can “identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that are either competitively beneficial or neutral.”

FERC has a similar directive – pursuant to Section 203(a)(4) of the Federal Power Act (16 USC 824b) – to evaluate and subsequently approve or block proposed mergers by public utilities. However, FERC’s current merger policies incorporate guidelines from DOJ and FTC that were issued almost twenty years ago.

Specifically, the March 17th NOI asks whether or not FERC’s current approach should be amended to reflect FTC and DOJ’s new 2010 merger guidelines, and what impact, if any, those guidelines should have “on the Commission’s analysis of horizontal market power in its electric market-based rate program.”

Want more details? You’ve got your choice of well-written memos from White & Case, Alston + Bird, Dewey & LeBoeuf, and Bracewell & Giuliani.

DOE Seeks Input on Rare Earth Metals Strategy

Image by Michael Diggles. Some rights reserved.

Earlier this week the Department of Energy announced that it is seeking comments from the public on rare earth metals used in the energy sector.

The Request for Information solicits feedback from “industry, academia, research laboratories, government agencies, and other stakeholders on issues related to demand, supply chain structure, financing, R&D, energy technology transitions and recycling of rare earth metals and other materials.”

Input received from the RFI will aid the agency in updating its Critical Materials Strategy, a report released in December of 2010 that examined “the role of rare earth metals and other materials in the clean energy economy.”

What are rare earths? And what exactly is their role in the clean energy economy? Turns out these seventeen chemical elements – relatively plentiful in the Earth’s crust, but hard to find in concentrated and accessible forms – are used quite extensively in everyday products such as iPhones and camera lenses.

They are also used in the manufacture of clean energy technologies. DOE’s December report found that several of these technologies we as a nation are beginning to depend on (such as wind turbines, electric cars, and solar cells) use rare earth materials that are “at risk” for supply disruptions in the near future.

As we noted earlier, the US reportedly still depends on China for 90% of these raw materials, and China is tightening its grip by planning a substantial reduction in exports of rare earths. Blogmosaic reported on China’s “rare advantage” in this market a few months ago.

Luckily, the DOE plans to diversify global supply chains as part of their critical materials strategy. Even better, however, are the DOE’s pledges to extract and process these materials in an environmentally sound manner, and to put time into researching recycling processes for these materials.

Comments on the RFI will be accepted until May 24, 2011.

Bayer CropScience and Methyl Isocyanate (MIC): A Timeline

Photo by Michael D. Heckman. Some rights reserved.

It’s been

…41 years since Aldicarb was introduced to the world. Aldicarb is a pesticide sold under the brand name Temik® by Bayer CropScience; its key component is methyl isocyanate (MIC), a highly toxic chemical.

26 years since MIC gas leaked from a pesticide plant in Bhopal, India, killing more than 10,000 people and setting the record for the world’s worst industrial disaster.

…2 ½ years since an explosion rattled a Bayer CropScience plant in West Virginia, killing two workers and narrowly missing a tank holding MIC.

…seven months since EPA and Bayer CropScience entered into an agreement in which Bayer voluntarily requested cancellation of the registration of Temik, which is to be phased out over a number of years.

…two months and 13 days since Bayer CropScience announced that, after a brief hiatus, they planned to restart production of MIC at their West Virginia facility, continuing until 2012.

…two months and 3 days since the U.S. Chemical Safety Board (CSB) released their final investigation report on the 2008 explosion at the Bayer CropScience facility.

…one month and 16 days since the citizens of Kanawha County filed a complaint in district court, requesting that the court enter an order declaring Bayer’s operation of their West Virginia facility “a private and public nuisance,” and “barring Bayer From resuming and/or continuing operation of the Bayer’s Pesticide manufacturing plant” until Bayer demonstrates compliance with the recommendations from the CSB report.

…one month and 14 days since the Court issued a temporary restraining order enjoining Bayer CropScience from resuming or engaging in the production of MIC at its chemical plant in Institute, West Virginia

…six days since Bayer CropScience announced their decision to abandon plans to restart production of MIC at the West Virginia plant, the same day that the district judge dismissed the plaintiff’s motion for a preliminary injunction, which would have barred MIC production at the plant.


The judge has now given the West Virginia plaintiffs ten days in which they can amend their suit on the basis of Bayer CropScience’s recent announcement, after which Bayer CropScience has 20 days to respond to any amended complaint. Stay tuned.

Carbon Neutral Coffee: May Both Your Beans And Your Marketing Claims Be Green

Photo by איתן. Some rights reserved.

Like coffee? Well, duh. (I write this from Seattle, WA, so excuse my assumptions.)

But most eco-conscious consumers know that every fragrant, tasty, and imported cup comes at an environmental cost. Last year, a Canadian coffee company commissioned a study that was used to calculate the carbon footprint of a single person’s coffee consumption (based on an average 2.6 cups/day). The study considered every step in the coffee-making process, from farming, roasting, and transporting the beans to boiling the water in your kitchen and eventually tossing the used grounds. The findings? This fortifying habit generates an eye-opening 35 kilograms of CO2 annually (comparable to driving a car about 105 miles).

The environmental impact leaves a lot to be desired, though it nicely sets the stage for companies who would like to work towards – and market to customers who strive for – carbon neutrality.

Enter Coopedota R.L. Earlier this week, the 800 farmer coffee cooperative in Costa Rica announced that after 12 years working towards carbon neutrality, their efforts had finally paid off – they are reportedly the first of their kind to export this certifiably “carbon neutral” coffee.

The certification comes in the form of PAS 2060, a set of materials developed by British independent standards-setter BSI that “allows organizations to ensure their carbon neutrality claims are correct and gain customers’ confidence.” While PAS 2060, which was launched in April of 2010, may be one of few private standards to be recognized internationally, no formal international certification scheme currently exists.

And what is carbon neutrality? Generally, “carbon neutral” describes an entity whose greenhouse gas emissions net to zero, usually by both decreasing carbon emissions as well as sequestering or offsetting an equivalent amount of carbon, or purchasing carbon credits to cover the difference. However, according to the FTC, no uniform definition of the term exists (though I’m sure The CarbonNeutral Company, who purportedly first coined and registered the term in 1998 would disagree).

In the states, we’re still far from any kind of national standard or certification scheme. However, the FTC is making progress towards developing federal regulations that dictate how products can use marketing claims of “carbon neutrality.” The FTC’s Green Guides cover environmental marketing generally, but it’s only in the past few years that consumers and marketers alike have clamored for more specific guidance on carbon neutrality claims. As we reported last October, the FTC is currently in the process of updating the Green Guides to address consumer feedback and to reflect changes in the marketplace.

You can see section VI.E (starting on page 166) of the FTC’s proposal for a discussion of the proposed changes (and initial feedback) relating to carbon offsets and carbon neutrality, or you can jump straight to page 201 for the actual proposed additions to the Green Guides regarding carbon offsets. This language, once approved, will eventually be codified at 16 CFR 260.5.

In the meantime, ease some of your consumer guilt by following these simple rules.

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