August 24, 2009
The independent rankings organization Chambers and Partners has named five partners at Sive Paget & Riesel as leaders in environmental law. The report describes SPR as a “superb environmental boutique” and praises the firm for its “incredible responsiveness” to client needs, and its depth of experience in environmental review, complex permitting, and litigation. Daniel Riesel, David Paget, Mark Chertok, Jeff Gracer, and Michael Bogin are singled out for their high quality work. Read the full review at Chambers and Partners. 2009 marks the sixth consecutive year that SPR has been in the first rank of environmental law firms in New York, according to the organization.
Several SPR attorneys have also received mention as among the best environmental law firms in the International Who’s Who of Business Lawyers, 2009. Read the full writeup below.
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Todd Woody at Green Inc. takes a look at the financing and Power Purchase Agreement arrangements between Pacific Gas & Electric (PG&E) and BrightSource Energy, a solar plant developer from Oakland, CA. The transaction also included a technology royalty agreement, the first of its kind that PG&E has entered into. Read the full account at the link below.
August 20, 2009
A prior blog post highlighted EPA’s proposed rule mandating greenhouse gas reporting for thousands of covered entities, with information collection obligations starting as early as January 1, 2010 if the rule is finalized as proposed.
On August 11, representatives of the American Petroleum Institute (API) and several oil companies met with the Office of Management and Budget (OMB) to discuss concerns about EPA’s proposed rule and to make several recommendations. EPA recently sent the rule to OMB for review.
The concerns expressed by API include:
- The rule’s compliance deadline (requiring data to be collected on January 1, 2010) is not feasible; and
- The rule could trigger process unit shutdowns to install or maintain required monitoring devices.
The recommendations advanced by API include:
- EPA should develop an applicability-screening tool so that facilities can determine whether they are subject to the rule;
- EPA should permit reporting based on “best available data” when installation of monitoring devices could result in process unit shutdowns; and
- The rule should allow reporting based on best industry practices instead of outdated or inappropriate standards.
API’s comments highlight some of the practical issues that companies face in determining (1) whether they are subject to the rule; and (2) whether compliance with the rule may raise significant operational issues.
August 19, 2009
Similar bills have been introduced in both the U.S. Senate and House of Representatives which would amend the Safe Drinking Water Act (SDWA) to eliminate an exemption for hydraulic fracturing, or “hydrofracking,” operations from required regulation under state underground injection control programs. The text of the Senate bill can be found at S. 1215 and the House bill at H.R. 2766.
The SDWA, under 42 U.S.C. § 300h, currently requires states to regulate, and imposes minimum regulatory requirements on, “subsurface emplacement of fluids by well injection” in order to protect drinking water supplies. The Act currently exempts from such requirements “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.” The proposed bills would remove this exemption, thus requiring regulation and permitting of hydraulic fracturing under the SDWA. They would also require the disclosure by entities engaging in hydraulic fracturing of the chemical constituents, but not the proprietary chemical formulas, used in the fracturing process. Both bills are currently in committee.
The proposed legislation comes at a time when pressure to extract natural gas deposits via hydrofracking is mounting. For example, the Marcellus Shale formation in New York has been identified as a location for the possible use of hydrofracking technology. The New York State Draft Energy Plan of 2009 recommends the “development of the Marcellus Shale natural gas formation with environmental safeguards that are protective of water supplies and natural resources.” The New York State Department of Environmental Conservation is currently in the process of preparing a Draft Supplemental Generic Environmental Impact Statement for hydraulic fracturing to develop the Marcellus Shale. More information is available on NYSDEC’s website.
August 18, 2009
On Thursday August 13, 2009, Judge Deborah A. Batts of the United States District Court in Manhattan ruled that certain provisions of the Bigger Better Bottle Bill (“Bill”) could be implemented immediately. This ruling followed the issuance of a preliminary injunction in May that halted enactment of the entire Bill until April 1, 2010. Judge Batts’ ruling determined that:
- NY State may begin collecting 80% of the unclaimed deposits on all non-water bottled beverages from the bottling industry;
- The beverage industry is required to increase the handling fees paid to redemption centers for taking empty bottles;
- All provisions involving “bottled water” cannot go into effect until at least October 22, 2009 when a follow up hearing will be held; and
- No decision was rendered on the New York-specific UPC bar code.
The Bill, which was passed in April, was challenged in May when Nestle, the Polar Corp., and the International Bottled Water Association (collectively, the “water companies”) filed suit in the U.S. District Court for the Southern District of New York. The water companies claimed that the Bill was unconstitutional because it violated the Dormant Commerce Clause, the Equal Protection Clause, and Substantive Due Process of the U.S. Constitution. Judge Thomas P. Griesa of the United States District Court in Manhattan ruled in favor of the water companies when he determined that certain provisions of the Bill were unconstitutional. In particular, the requirement that a NY State-specific UPC be placed on all bottles sold in the state was found unconstitutional due to infringement on interstate commerce. For more information on Judge Griesa’s reasons for issuing the preliminary injunction see our prior post on that ruling.
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August 17, 2009
After initially surprising New York City by proposing that the Gowanus Canal be listed on the federal Superfund list, the New York State Department of Environmental Conservation (DEC) now believes the City’s proposed alternative to listing should be seriously considered by the Environmental Protection Agency (EPA), according to press reports. Specifically, an August 6th letter from DEC to EPA states as follows:
Without expressing a substantive opinion on the proposed alternate plan, we believe that it is appropriate for the Environmental Protection Agency to carefully review and consider the proposal, to determine whether it in fact will reliably result in an investigation and remediation plan fully consistent with what would otherwise be required if the site is listed….
Concerned about environmental stigma and interference with a planned rezoning that would revitalize the Gowanus neighborhood, create jobs, and increase tax revenue, on July 8th the City of New York filed extensive comments urging EPA to pursue alternatives to a Superfund listing. The full text of the City’s comments is available here (PDF). Among other things, the City argued that the proposed listing would:
- Violate a Presidential Executive Order because it would interfere with actions already planned by the Army Corps of Engineers to address contamination in the Gowanus; and
- Conflict with a 2005 Consent Order between the City and DEC under the Clean Water Act.
In its comments, the City put forth an alternative plan for addressing issues at the Gowanus that would include participation by the City and also by National Grid, which supported the City’s comments in a separate letter. As we have previously noted, several developers and landowners in the Gowanus also have voiced concerns about the proposed listing for similar reasons.
The State DEC’s recent letter signals that the politics around a Superfund listing may be shifting in favor of alternatives. EPA is expected to make a decision on the proposed listing sometime in the next few months, although that time frame could always be postponed in favor of additional consideration.
EPA has supported alternatives to Superfund listing elsewhere in the country when a credible alternative to listing is proposed. The City, National Grid, and other parties opposed to listing have made the case for such an alternative to be carefully considered for the Gowanus.
This past April, EPA proposed regulations that would mandate reporting on emissions of greenhouse gas (“GHGs”) for thousands of facilities and source categories. (74 FR 16488 (April 10, 2009)). The comment period on the proposed rule has closed, and it is anticipated that EPA will issue its final rule in the coming months. If the rule is adopted as proposed, covered facilities will be required to measure GHG emissions starting on January 1, 2010 – and report emissions for calendar year 2010 on March 31, 2011.
The rule’s reporting requirement would apply to:
- Facilities in specified source categories, including:
- Electricity generating facilities that are subject to the Acid Rain Program or that contain generating units that collectively emit 25,000 metric tons or more of GHGs per year;
- Aluminum production facilities;
- Cement production facilities;
- Electronics manufacturing facilities that exceed certain annual production capacities;
- Petroleum refineries;
- Petrochemical facilities; and
- Certain municipal landfills.
- Facilities that emit 25,000 metric tons or more of GHGs per year in combined emissions from stationary fuel combustion units, miscellaneous use of carbonates and certain specified source categories, including:
- Electricity generation;
- Food processing;
- Pulp and paper manufacturing.
- Facilities that do not contain a source in any designated source category, but include stationary fuel combustion units with an aggregate maximum rated heat input capacity of 30 mmBtu/hr or greater, and that emits 25,000 metric tons or more of GHGs per year from all such units;
- Suppliers of certain fuels and gases; and
- Manufacturers of mobile sources and engines (which would be required to report emissions from those vehicles and engines).
If a facility falls within any of these categories, emissions information will have to be collected as of January 1, 2010. Please contact us if you would like assistance in determining whether your facility would be subject to the reporting requirements and, if so, for help in preparing for compliance.
Additional information on the proposed rule can be found at EPA’s website.
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