Archive for May, 2011

A Sliver of an Exemption Left in Silviculture Rule

Photo by ッ Zach Hoeken ッ. Some rights reserved.

40 CFR 122.27 (the EPA’s “silviculture rule”) exempts from NPDES permitting all discharges from silvicultural (forestry) activities such as thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance resulting from natural runoff.

But recent opinions from the U.S. Court of Appeals for the Ninth Circuit have restricted the interpretation of this exemption.

In Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176,  the Northwest Environmental Defense Center brought suit against Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies for their failure to obtain permits for discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest. The Defendants argued that these discharges are “point source” discharges under the Clean Water Act (CWA) and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

The Ninth Circuit agreed, filing their original opinion in the case on August 17, 2010. According to Perkins Coie’s Update on the case, the silviculture rule’s exemption for natural runoff “ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.”

On October 5, 2010, the defendants filed petitions (here and here) for rehearing and rehearing en banc, but just two weeks ago, the Ninth Circuit issued an order and opinion denying the petitions, and environmentalists everywhere rejoiced.

Hurrah!

Compliance During Inclement Weather

Photo courtesy of @gletham GIS, Social, Mobile Tech Images. Some rights reserved.

While tornadoes dominate headlines, the EPA is looking forward a few weeks to the onset of hurricane season. As if your personal safety weren’t enough to look out for, a recent EPA news release reminds us that extra precautions should be taken to minimize chemical releases associated with natural disasters.

This is not only a gentle suggestion but a federal requirement. Under the Clean Air Act’s Section 112(r)(1) – 42 U.S.C. 7412(r)(1) – owners and operators of facilities producing, processing, handling or storing hazardous substances have a “general duty” to take the steps necessary to prevent releases of such substances (you can see a list of the regulated substances at 40 C.F.R. 68.130). Such steps typically include a mix of general safety precautions and maintenance, monitoring, and employee training measures.

Let a little something slip? Any release that surpasses the “reportable quantity” for that substance mandates immediate notification of the National Response Center pursuant to Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9603). But just because you’ve notified the federal authorities doesn’t mean you can leave your neighbors in the dark – Section 304 of the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11004) requires owners and operators to alert state and local emergency response groups as well.

The relative predictability of hurricanes buys affected facility owners/operators a little bit of time – a rare opportunity not afforded to those in tornado zones. Of course, many of the precautions recommended are the same, it’s just that the schedule for implementation can be drastically different.

For more information, visit the EPA’s Natural Disaster and Weather Emergencies center.

Crouching NOA, Hidden EIS: Last Week In Environmental Impact Statements

Many of you are familiar with the National Environmental Policy Act (NEPA), which requires federal agencies to prepare detailed reports known as Environmental Impact Statements (EIS). These reports attempt to compel federal agencies to consider the potential environmental impacts of proposed federal actions and any viable alternatives.

Federal agencies are required to prepare EISs in accordance with 40 CFR Part 1502, and to file the EISs with the EPA as specified in 40 CFR 1506.9. Each week the EPA prepares a digest of the preceding week’s filed EISs, which it publishes every Friday in the Federal Register under the title, “Notice of Availability” (NOA).

The EPA does not, however, include copies of the available EISs in the Notice nor on their website; they only “assist the public” by providing agency contacts and information “about” the EISs. Agencies, of course, must provide copies of an EIS to any member of “the interested public” on demand, but a consolidated view of full EISs is near impossible to come by. (Though it looks like “data gathering fairy godmother” Cubit is giving it a shot, with their “NEPA library.”)

As of January 2011, the EPA was soliciting feedback on the possibility of eliminating “the publication of weekly Notices of Availability for EISs in the Federal Register in favor of a central repository on the Internet (possibly on EPA’s Web site).” I strongly urge anyone who works with EISs to submit comments to the EPA in favor of this (the comment period for this particular notice has passed, but who says our voices can’t be heard?) The Notices of Availability leave a lot to be desired.

As an experiment, I aimed to locate, and provide links to, all the EISs referenced in last week’s NOA. It was exhausting, taking about an hour and a half to locate all thirteen.  (You can see the results of my efforts below.) And so I rest my case. Let the central repository move forward!

* * *

EIS No. 20110145, Final EIS, USFWS, TX, Hays County Regional Habitat Conservation Plan, Application for an Incidental Take Permit, Hays County, TX, Review Period Ends: 06/20/2011, Contact: Adam Zerrenner 512–490–0057.

EIS No. 20110146, Draft EIS, NPS, 00, Yellowstone National Park Draft Winter Use Plan, To Establish a Management Framework, Implementation, WY, MT and ID, Comment Period Ends: 07/18/2011, Contact: David Jacob 303–987–6970.

EIS No. 20110147, Final EIS, USACE, MO, PROGRAMMATIC—Mechanical Creation and Maintenance of Emergent Sandbar Habitat in the Riverine Segments of the Upper Missouri River, To Support Least Tern and Piping Plover Populations, Implementation, MO, Review Period Ends: 06/20/2011, Contact: Cynthia S. Upah 402–995–2672.

EIS No. 20110148, Final EIS, USACE, TX, Rusk Permit Area, Proposes to Construct, Operate, and Reclaim Permit Area, Expansion of Existing South Hallsville No. 1 Mine. Issuance of Section 404 Permit, Rusk, Harrison and Panola Counties, TX, Review Period Ends: 06/20/2011, Contact: Darvin Messer 817–886–1744.

EIS No. 20110149, Draft EIS, USFS, MT, Troy Mine Revised Reclamation Plan, Proposed Revision is to Return Lands Disturbed by Mining to a Condition Appropriate for Subsequent Use of the Area, Kootenai National Forest, MT, Comment Period Ends: 07/05/2011, Contact: Bobbie Loaklen 406–283–7681.

EIS No. 20110150, Final EIS, DOE, ID, ADOPTION—Areva Eagle Rock Enrichment Facility, Construct, Operate, and Decommission, Proposed Facility would Enrich Uranium for Use in Commercial Nuclear Fuel for Power Reactors, Bonneville County, ID, Review Period Ends: 06/20/2011, Contact: Matthew McMillen 202–586–7248. U.S. DOE has adopted the NRC’S FEIS #20110045, filed 02/14/2011. DOE was not a Cooperating Agency for the above FEIS; recirculation of the document is necessary under 40 CFR Part 1506.3(b).

EIS No. 20110151, Final EIS (Summary only), USAF, UT, White Elk Military Operations Area, Propose to Establish a New Military Operations Area (MOA) Linked to the Utah Test, Utah and Training Range (UTTR) Airspaces Nevada, Hill Air Force Base, UT and Nevada, Review Period Ends: 06/20/2011, Contact: Linda Devine 757–764–9434.

EIS No. 20110152, Final EIS, FHWA, CA, Jepson Parkway Project, Proposes to Upgrade and Link a Series of Existing Two and Four-Lane Roadways, Right-of-Way, Endangered Species Act Section 7 and U.S. Army COE Section 404 Permits, Solano County, CA, Review Period Ends: 06/20/2011, Contact: Melanie Brent 510–286–5231.

EIS No. 20110153, Final EIS, DOE, OH, ADOPTION—American Centrifuge Plant, Gas Centrifuge Uranium Enrichment Facility, Construction, Operation, and Decommission, License Issuance, Piketon, OH, Review Period Ends: 06/20/2011, Contact: Mathew McMillen 202–586–7248. U.S. DOE has adopted the NRC’S FEIS #20060189, filed 05/11/2006. DOE was not a Cooperating Agency for the above FEIS; recirculation of the document is necessary under 40 CFR Part 1506.3(b).

EIS No. 20110154, Final EIS, NRC, MN, Generic—License Renewal of Nuclear Plants for the Prairie Island Nuclear Generating Plant, Units 1 and 2, Supplement 39, NUREG–1437, Implementation, City of Red Wing, Dakota County, MN, Review Period Ends: 06/20/2011, Contact: Elaine Keegan 301–415–8517.

EIS No. 20110155, Final EIS, NPS, WI, Apostle Islands National Lakeshore General  Management Plan/Wilderness Management Plan, Implementation, Bayfield and Ashland Counties, WI, Review Period Ends: 06/20/2011, Contact: Nick Chevance 402–661–1844.

EIS No. 20110156, Final EIS, NRC, TX, Comanche Peak Nuclear Power Plant Units 3 and 4, Application for Combined Licenses (COLs) for Construction Permits and Operating Licenses, (NUREG–1943), Hood and Somervell Counties, TX, Review Period Ends: 06/20/2011,  Contact: Michael H. Willingham 301–415–3924.

EIS No. 20110157, Final EIS, NRC, MD, Calvert Cliffs Nuclear Power Plant Unit 3, Application for Combined License for Construct and Operate a New Nuclear Unit, NUREG 1936, Calvert County, MD, Review Period Ends: 06/20/2011, Contact: Laura Quinn 301–415–2220.

In Which Obama Takes the Government Out for a Round of Electric Cars

Photo by complexify. Some rights reserved.

In the immaculate words of the boys (or were they men?) of pioneering new jack swing group Boyz II Men, “little things mean a lot / appreciate what you got /if you give all that you have / it’s forever we’ll last.” Now watch me try to shoehorn those lyrics into a larger patchwork regarding the burgeoning sustainability movement and foreign oil dependence in the contemporary United States, because President Obama announced in a memorandum today the government’s plan to fill out their vehicle fleet with 116 new electric cars, led by 101 Chevrolet Volts, along with Nissan Leafs and Oslo-based Think City cars.

This small purchase (“little things,” remember?) arrives as part of a larger gesture on the U.S. government’s part to lead by example and reduce our country’s reliance on fossil fuels. The ultimate goal for government transportation is that all government vehicles will be run on alternative energy sources by 2015 (a goal Obama had originally set in March), be it electric, natural gas, clean diesel or flex-fuel.

Obama’s involvement in promoting hybrid vehicles can be traced back as far as November of 2006, when he co-authored with Jay Inslee (D-Wa.) the Healthcare for Hybrids Act, a bill that provided federal assistance for health care in the auto industry in exchange for the funds to be used on hybrid technologies.  In 2009, the Obama Administration authorized the purchase of 3,100 hybrid-electric cars for government use with money from the federal stimulus, and in late March of this year, he issued announced the “Clean Fleet Partnership,” in which government rebate money is set aside for companies able to lower their vehicle fleet’s oil usage.

Obama is steering us towards two ultimate goals, both laid out in the first paragraph of today’s memorandum. One, that by 2025, the U.S. will have reduced its dependence on foreign oil by 1/3, a hope that he has stressed before in his addresses on energy, and two, that there will be one million electric vehicles in the U.S. by 2015. These bring us back to that closing line of the Boyz II Men couplet above (oh boy am I regretting using that song as a structural device now – it seemed like such a good idea at the time!) “if you give all that you have it’s forever we’ll last” – the U.S., and the rest of the world along with it, is fast approaching a breaking point in its attitudes towards transportation and the sustainability movement that surrounds it. It’s not even just about environmental damage or ticking oil clocks in the Middle East anymore; as Energy Secretary Steven Chu pointed out, “we are in a global race to capture the growing market for alternative vehicle technologies” – and we’re trying our damnedest to win.

Oil and Gas Sector Most “Vulnerable” to the UK Bribery Act

Photo by Neubie. Some rights reserved.

Poor things.

According to research from Ernst & Young, those in the oil and gas sector are the most likely to be impacted by the UK’s Bribery Act 2010, which is slated to go into effect on July 1, 2011.

The Act, which “reforms the criminal law to provide a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home or abroad,” has been described as “the toughest anti-corruption legislation in the world,” putting the US Foreign Corrupt Practices Act  (FCPA) to shame. (Squire Sanders recently published an Alert detailing three major areas that will be criminalized by the UK Act that are not currently covered by the FCPA.)

Ernst & Young is quick to point out that the oil and gas sector’s “vulnerability” to prosecution doesn’t mean that “individuals and companies within the oil and gas sector are intrinsically more corrupt.” Rather, points out a spokesperson, “it is the nature and locations of their businesses that exposes them to additional risk.”

The findings were based on analysis of prior convictions in various sectors under the FCPA. Interested in perusing disclosures related to (possible, probable and persecuted) FCPA violations in the oil and gas sector? Check out this search on knowledgemosaic’s SEC Filings page.

Here’s a teaser:

NOBLE CORP | Form 10-Q | 5/6/2011

In 2007, we began, and voluntarily contacted the SEC and the U.S. Department of Justice (“DOJ”) to advise them of, an internal investigation of the legality under the United States Foreign Corrupt Practices Act (“FCPA”) and local laws of certain reimbursement payments made by our Nigerian affiliate to our customs agents in Nigeria. In 2010, we finalized settlements of this matter with each of the SEC and the DOJ. In order to resolve the DOJ investigation, we entered into a non-prosecution agreement with the DOJ, which provides for the payment of a fine of $2.6 million, as well as certain undertakings, including continued cooperation with the DOJ, compliance with the FCPA, certain self-reporting and annual reporting obligations and certain restrictions on our public discussion regarding the agreement. The agreement does not require that we install a monitor to oversee our activities and compliance with laws. In order to resolve the SEC investigation, in 2010, we agreed to the entry of a civil judgment against us. Pursuant to the agreed judgment, we agreed to disgorge profits of $4.3 million, pay prejudgment interest of $1.3 million and refrain from denying the allegations contained in the SEC’s petition, except in other litigation to which the SEC is not a party. We also agreed to an injunction restraining us from violating the anti-bribery, books and records, and internal controls provisions of the FCPA, and we waived a variety of litigation rights with respect to the conduct at issue. The agreed judgment does not require a monitor. Our ability to comply with the terms of the settlements is dependent on the success of our ongoing compliance program, including our ability to continue to manage our agents and supervise, train and retain competent employees, and the efforts of our employees to comply with applicable law and our code of business conduct and ethics.

FERC and Google Move Forward with Massive Wind Energy Project

Photo by phault. Some rights reserved.

The Federal Energy Regulatory Commission (FERC) made another big step forward with their proposed $6 billion project to construct underwater transmission lines that would run from offshore wind farms on the Atlantic Coast to power grids on the shore, when they settled this week on a rate of return equity figure for the project’s investors after some initial back and forth. The Atlantic Wind Connection project, which has been in development for almost a year, is being led by independent transmission company Trans-Elect and backed financially by Google (who currently have a 41.7% stake in the project, a 2% raise since they tentatively came aboard last fall), as well as Tokyo-based trading firm Marunbeni Corp. and Good Energies, a Swiss clean-energy investment firm.

The AWC had initially requested a 13.58% incentive return, but after concerns from the Maryland Public Service Commission and the National Rural Electric Cooperative Association as well as other governmental organizations, FERC was able to counter with a 12.59% figure, which Google and the AWC have accepted, along with the clause that the developer retains the opportunity to recover 100% of costs if the project is abandoned for any reasons outside their own control. In addressing the concerns about the high incentive return, FERC Commissioner Marc Spitzer commented that “our orders on incentives must balance the interests of consumers and the interests of investors,” and with this recent compromise it would seem that everyone involved is happy for the time being.

The project itself would involve running parallel transmission lines across 250 miles of Atlantic coastline, roughly 22 miles off the coast, stretching the corridor from Northern New Jersey to Virginia. These transmission lines would connect the 7,000 megawatts of wind power from these offshore wind farms to power grids on the coast where they would be converted to alternating current, theoretically harvesting enough wind energy to power 1.9 million households on the East Coast.

The first portion of the project, expected to be built from southern New Jersey to Delaware, is estimated to be completed by 2013, while the entire project could be completed by 2021, provided it is able to get off the ground smoothly. Since a deal has been reached with developers on their return, the steps left involve purchasing offshore leases to house the power grids, preparing an environmental impact statement for the EPA, and securing a “go-ahead” from PJM Interconnection, the regional grid manager. It’s an exciting project that, with a powerhouse like Google on board, could mean a lot more like-minded projects springing up around the globe, providing it doesn’t fizzle out. Check out FERC’s prepared news statement on the KM site, and the longer declaratory order for the project on FERC’s site.

GAO Slams FDA for Poor Oversight of Imported Seafood

Photo by adactio. Some rights reserved.

I hope you haven’t eaten yet. Or if you have, that it wasn’t sushi.

Approximately 50% of seafood imported into the US (and remember, 80% of the seafood we eat here is imported) is factory farmed. These “farms” pack fish in fin-to-fin, causing conditions that foster bacterial infections, which are subsequently treated with antibiotics. Eating these antibiotic-residue-laced fish has been found to cause antibiotic resistance and even cancer in humans.

Still hungry?

Maybe you’d regain your appetite if you knew that the FDA, whose very job it is to ensure the safety of the nation’s food supply, had visited the farms of foreign supplies, tested fish for drugs approved for use in say, the EU, but not in the US, or even effectively implemented their sampling program. Well, according to a recent GAO report, the FDA has done none of these things.

In 2009, the FDA signed a memorandum of understanding (MOU) with the Department of Commerce’s National Marine Fisheries Service (NMFS) pledging to enhance seafood oversight and to cooperate to ensure that fish and fishery products are safe and meet FDA requirements. But this, too, says the GAO, has been a bust: “FDA and NMFS have made limited progress in implementing their 2009 MOU, resulting in a lack of systematic collaboration between the agencies.”

This isn’t the first time that the spirit of a FDA-NMFS MOU has been violated. In 1974, the two agencies signed a similar agreement, vowing to “improve the efficient use of FDA’s inspection resources by minimizing the number of FDA inspections at establishments already inspected by NMFS.” Again, the GAO found that the FDA had “not fully met its responsibilities under the MOU.”

For the gruesome and disappointing details of the FDA’s inspection program, check out the full GAO report.

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