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August 31, 2009

Newslink: National Grid for Renewables Could Encourage Fossil Fuel Use

The Wall Street Journal’s Environmental Capital examines the implications of a national electrical transmission grid.  Some have argued that a national power grid is a necessary facilitator for developing more renewable energy sources.  However, a report released by the Duke Climate Change Policy Partnership points out that a national electricity grid could also facilitate transmission of energy from coal-fired plants in remote locations, possibly offsetting carbon reductions from renewable sources.   Meanwhile, funding is returning to the wind energy markets.

New Report Highlights Potential Dangers of Atrazine, a Commonly Used Herbicide

By: Jessica Albin — Filed under: Emerging Issues, Safe Drinking Water Act — Posted at 2:02 pm

In a recent report, the National Resources Defense Council (NRDC) found that the commonly-used herbicide atrazine has pervasively contaminated watersheds and surface water in the Midwestern and Southern US, and that the Environmental Protection Agency (EPA) is not using the best available science to detect the problem.  Atrazine, used as a weed killer on corn, sorghum, sugarcane, and lawns, is regulated under the Safe Drinking Water Act (SDWA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Under SDWA, EPA has determined that no more than 3 parts per pillion (ppb), as a yearly average, of atrazine may be present in drinking water.

The NRDC Report, “Poisoning the Well: How the EPA is Ignoring Atrazine Contamination in Surface and Drinking Water in the Central United States,” analyzed EPA monitoring data for surface and drinking water and found that all 40 watersheds tested had detectable atrazine levels, with more than half of those watersheds having average concentrations above 1 ppb, the amount at which aquatic vegetation is affected.  The Report also found that both watersheds and drinking water systems had one-time peak atrazine concentrations well above 3 ppb; the highest peak concentration in a drinking water system was almost 40 ppb.  Residents of many of the communities with atrazine spikes were unaware of the problem – testing is typically conducted by the chemical’s manufacturer, who reports the data directly to the EPA.  Unless the concentration is above the 3 ppb yearly average, residents are generally not warned.


August 28, 2009

FERC and Maine Collaborate To Expedite Hydrokinetic Power Projects

Last week, the Federal Energy Regulatory Commission (FERC) and the state of Maine signed an agreement  to collaborate on the review of tidal energy projects, with the aim of fast-tracking the approval process.  The FERC-Maine agreement creates a framework intended to streamline all aspects of the review of tidal energy demonstrations as well as developments, including their environmental review, in order to get such projects “into the water” as quickly as possible.  FERC is charged with regulating the interstate transmission of electricity, natural gas, and oil.

This agreement marks the first of its kind involving the federal government and an East Coast state; FERC has similar agreements Washington and Oregon.

Hydrofracking May Have Contaminated Water Supply

Controversy continues over the process known as hydraulic fracturing (or “hydrofracking”) to recover underground natural gas deposits.   Preliminary results from water sampling conducted by EPA have revealed chemical contaminants used in hydrofracking in wells utilized for drinking water in Pavillion, Wyoming.  The results, while preliminary, may be the first demonstrated instance of hydrofracking causing contamination to water supplies.

Hydrofracking is currently being considered for use in a number of states, including New York, which is preparing an environmental impact statement for the potential use of hydrofracking for recovery of natural gas in the Marcellus Shale formation.   The development of the Marcellus formation has been encouraged in the New York State Draft Energy Plan of 2009, calling also for safeguards in place to protect water supplies.   Other states, including North Dakota, have defended the technology as environmentally safe (pdf).  In addition, Congress is considering regulating hydrofracking by removing an exemption for the process under the Safe Drinking Water Act.

If contamination of water supplies can be confirmed as being linked to hydrofracking, it will no doubt impact the debate, and future potential uses of the technology.

August 27, 2009

RCRA Injunction Requiring $150 Million Cleanup Not Dischargeable in Bankruptcy

By: Bridget M. Lee — Filed under: Bankruptcy, Citizen Suits, RCRA — Posted at 9:30 am

On August 25, the Court of Appeals for the Seventh Circuit held that an injunction imposed pursuant to the Resource Conservation and Recovery Act (RCRA) against Apex Oil Inc. requiring Apex to remediate contamination at a former oil refinery in Hartford, Illinois was not discharged in Apex’s Chapter 11 bankruptcy.  United States v. Apex Oil Co., Inc., — F.3d —, 2009 WL 2591545 (7th Cir. 009).  Apex argued that the government’s remediation injunction, which was estimated to require expenditures of approximately $150 million, was a “right to payment” that had been properly discharged in bankruptcy proceedings.  The circuit court rejected this argument.

Writing for the court, Judge Richard A. Posner concluded that a RCRA injunction to remediate does not qualify as a claim that can be discharged in bankruptcy because it does not give rise to a “right to payment” as that phrase is defined by the Bankruptcy Code.  Unlike CERCLA, RCRA does not entitle the government to a monetary payment of cleanup costs by a responsible party; instead, it allows the government to secure equitable relief requiring a responsible party to abate an environmental hazard.

According to the Judge Posner, the fact that Apex did not have the ability to conduct the cleanup itself and would have to spend money to comply with the remediation injunction did not create a dischargeable claim.  He reasoned that whether the defendant conducts a cleanup or hires a third party to do so proves irrelevant to the question of whether a “right to payment” exists since “[a]lmost every equitable decree imposes a cost on the defendant. ”

August 26, 2009

Stormwater Enforcement by EPA Increasing

By: Michael Bogin — Filed under: Clean Water Act, Enforcement, New York Environmental Law — Posted at 9:30 am

In a move that signals increased enforcement efforts for stormwater violations, the Environmental Protection Agency (EPA) Region 2 recently issued an order requiring the Village of Port Chester, NY, to comply with the stormwater requirements of the Clean Water Act, due to elevated bacteria levels revealed by sampling.  The order comes shortly after Region 2 issued fines for stormwater violations amounting totaling $100,000 to two companies involved in non-compliant construction activities.  In addition, enforcement efforts in EPA’s Region 1 offices are ramping up; nine municipalities in Massachusetts and New Hampshire were recently issued violations by EPA’s New England offices for violating the Municipal Separate Storm Sewer System (MS4) requirements, with maximum potential fines ranging from $40,000 to $70,000.

Relatively new stormwater regulations—known as Phase II regulations for MS4s—required certain small regulated municipalities to develop and implement stormwater management plans by 2008.  Generally enforcement of these requirements takes place at the state level, but EPA retains certain authority to undertake direct enforcement.  Recently, EPA warned the states on lax Clean Water Act enforcement.

Under Phase II regulations, municipalities must implement “minimum control measures,” to demonstrate compliance, including: (1) public education and outreach, (2) public participation/involvement, (3) illicit discharge detection and elimination, (4) construction site runoff control, (5) post-construction runoff control, and (6) pollution prevention/good housekeeping.  Failure to implement these measures effectively will create a risk of enforcement and penalties.

EPA’s willingness to impose penalties on municipalities in Massachusetts and New Hampshire, as well as the significant penalty imposed by Region 2 on noncompliant construction activities, signals that EPA is committed to serious enforcement against stormwater violations.  Federal enforcement may in turn spark additional attention and enforcement from state-level authorities.  Municipalities covered by the MS4 regulations and entities engaged in construction activities are on notice that they need to comply with all stormwater regulations, including Phase II MS4 requirements.

August 25, 2009

Shareholder Resolutions on Climate Change on the Rise

A new report finds that shareholder resolutions on the issue of climate change are increasing in both frequency and success.  The report, released by the non-profit groups Ceres and the Interfaith Center on Corporate Responsibility, finds that a record number of 68 climate-related shareholder resolutions were filed during the 2009 proxy season.  The report indicates that 31 resolutions were withdrawn in response to the company in question taking affirmative steps on climate.  Higher levels of support are being seen in votes on climate-related shareholder resolutions, with 6 resolutions receiving more than 30% of the vote.

One resolution, by shareholders of IDACORP—an Idaho energy company—achieved a majority vote of 51.2%.  Following the vote the company is working with a shareholder advisory group on identifying renewable energy pilot projects, and the company promised to adopt greenhouse gas reduction goals, according to the report.  The majority vote on the IDACORP resolution marked the first time such a resolution has achieved majority approval.

If the trends identified in the report continue, corporations will increasingly face pressure from shareholder resolutions to take action on the issue of global climate change.

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