Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by Edward V. Walsh, III

Chemical manufacturers, distributors and employers of all types need to take note of new Occupational Safety and Health Administration (OSHA) requirements contained in OSHA’s recently modified hazard communication standard (HCS). The modifications make the new HCS consistent with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The United States now joins the EU and numerous other countries in making this move.

Note that currently 27 states or U.S. territories have OSHA-approved plans. These states have six months from the publication of the new standard to adopt comparable versions. State governments may also enact federally approved plans that impose stricter (but not less strict) requirements on employers. Businesses must be aware of any such state rules and adjust their programs accordingly.
 

To read the full entry, please click here.

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This post was written by Peter Cassidy and Joseph Otoo

Introduction

The global demand for natural resources continues unabated. As revenues increase and profits soar in the face of this demand, there has been a resurgence of “resource nationalism” with resource-rich host states seeking greater control or a larger share of the revenue generated from its resources.

Ernst & Young has recently ranked protectionism by governments through resource nationalism as the number one risk for mining companies in 2013. This alert looks at the impact of risks associated with resource nationalism on infrastructure projects and how those risks might be mitigated.

To read the full entry, please click here.

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This post was written by Peter Zaman

Unlike most traded commodity markets, the market for trading carbon credits or emissions allowances in the EU is not one based on its utility, usage or consumption. A carbon credit is not used in manufacturing processes or consumed like power or grain. Its market is entirely an invention of policy as implemented through legislation and regulation with a view to reducing the carbon emissions in the EU. Any demand for a carbon credit or emission allowance (“allowances”), is also therefore a creation of those legislative and regulatory processes. That process has left the EU Emissions Trading Scheme (“EU ETS”), today in its third phase, moribund with an over-supply of allowances.

To read the full entry, please click here.

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This post was written by Mark A. Mustian.

If you have been involved in a property with contamination, you are likely aware of the concerns associated with the release of volatile vapors into the indoor air space of buildings located on or near the contamination. Volatile organic chemicals such as trichloroethylene, petroleum compounds, and even inorganics such as mercury, may all emit vapors which can become trapped inside of buildings. These vapors present both short and long-term health concerns, and in certain circumstances even create a risk of fire or explosion. Because such vapors may migrate offsite to neighboring properties, they may create the risk of a third party lawsuit as well. Both the U.S. Environmental Protection Agency (EPA) and various state agencies have recognized the potential environmental impacts of vapor intrusion (VI) for many years, and have developed a patchwork procedure for evaluating and mitigating these impacts.

EPA first addressed this issue formally in November, 2002, when EPA’s Office of Solid Waste and Emergency Response (OSWER) issued Draft OSWER Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soil (Subsurface Vapor Intrusion Guidance). This document, which has never been finalized, was intended as a tool to help people conduct screening evaluations and determine if VI at a particular site posed an unacceptable risk to human health. The document did not provide recommendations for either delineating the extent of the risk or procedures to eliminate the risk. Since this draft guidance was published, numerous sites across the country have been evaluated and mitigated to reduce or eliminate potential risks. This work, along with research by private and government groups, has lead to a greatly improved understanding of the issues involved in assessing and managing VI. In 2009, EPA’s Office of the Inspector General (OIG) recommended that OSWER evaluate the 2002 report and update it to reflect the current understanding of VI evaluation and remediation. The new draft guidance documents are the result of the 2009 recommendation.

EPA has issued in draft form two guidance documents. One document is the comprehensive guidance for assessing vapor intrusion, making risk management decisions and implementing mitigation. This document, the OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air (Final VI Guidance), is intended to replace the 2002 draft Subsurface Vapor Intrusion Guidance document. For petroleum hydrocarbons that arise from releases at Subtitle I underground storage tank (UST) systems, EPA has developed a companion to the Final VI Guidance. The companion guidance document, Guidance For Addressing Petroleum Vapor Intrusion At Leaking Underground Storage Tank Sites (OUST Guidance), provides information and guidance about how vapor intrusion should be assessed for petroleum hydrocarbons at petroleum UST sites and brownsfield sites with similar characteristics. The OUST Guidance is intended to supplement the Final VI Guidance, and both documents would be applicable to petroleum sites. The OUST Guidance was prepared as a result of the 2009 OIG report which noted that the 2002 draft guidance did not address vapor intrusion at petroleum sites and recommended the preparation of guidance for UST sites.

According to EPA, the Final VI Guidance is intended for use at any site being evaluated by EPA pursuant to CERCLA or RCRA, EPA’s brownfield grantees, or state agencies with delegated authority to implement CERCLA or RCRA where vapor intrusion may be of potential concern. However, it is likely that the concepts and procedures developed in this guidance will be adapted for use at any site where VI is of concern.

The Final VI Guidance and OUST Guidance is intended to address the issues recommended in the 2009 OIG report. These issues include:

• Updated toxicity values.
• A recommendation(s) to use multiple lines of evidence in evaluating and making decisions about risks from vapor intrusion.
• How risks from petroleum hydrocarbon vapors should be addressed.
• How the guidance applies to Superfund Five Year Reviews.
• When or whether preemptive mitigation is appropriate.
• Operations, maintenance, and termination of mitigation systems.
• When institutional controls (ICs) and deed restrictions are appropriate.

Affected parties to this guidance could include property developers, local and state regulatory agencies, land owners, consultants, and Potentially Responsible Parties (PRPs) at CERCLA sites. When finalized, these documents, even though they have no regulatory authority, will likely establish the “standard of care” going forward and determine how properties with VI issues are evaluated and remediated. It is important that interested parties evaluate these document and address any issues or concerns during the comment period. EPA will accept comments on the draft documents through May 24, 2013.

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This post was written by Christopher L. Rissetto and Robert Helland.

It’s been more than four years since President Obama signed the American Recovery and Reinvestment Act of 2009 (“Recovery Act”) into law February 17, 2009 (Public Law 111-5). Yet questions and issues regarding the spending of energy-related Recovery Act funding continue. The latest includes an audit from the Department of Energy Office of Inspector General that found problems with the use of Recovery Act funding in the Industrial Carbon Capture and Storage Program. In addition, the Vice Chair of the House Energy and Commerce Committee, Marsha Blackburn, has introduced legislation imposing additional restrictions on companies that receive federal funding from the Department of Energy,drafted in response to reports that at least one bankrupt recipient of Recovery Act funds is selling its assets to a Chinese auto manufacturer. Both of these events - along with the fact that millions in Recovery Act funding has still not been spent - indicate that both Congress and the Executive Branch will continue to pay attention to the spending of funds for renewable and energy-efficiency projects for some to come.

To read the full entry, please click here.

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On Thursday, March 21st presenters from London, California and Pennsylvania spoke about compliance with environmental regulations affecting products. They discussed recent domestic and international requirements related to material sourcing, product design, use, and disposition.

With U.S. manufacturers, distributors and retailers faced with increasing environmental regulation of products, this program was designed to help regulated entities understand the prohibitions, restrictions and requirements they need to know. In particular, key requirements and legal developments were addressed:

• The SEC's conflict minerals regulations
• California's Green Chemistry Law
• The European Union's Restriction on Hazardous Substances (RoHS) and REACH laws
• Product takeback, especially electronic waste legislation

The slides are available for download. To watch the video presentation please click here.

Be sure that we will monitor and analyze these issues and many other environmental and energy issues through the year on our blog and in future teleseminars.

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This post was written by Stefanie Lepore and Nicolle Snyder Bagnell.

The Center for Sustainable Shale Development (“CSSD”), an environmental organization located in Pittsburgh, Pa., has announced a program of Performance Standards that has been mutually agreed to by a number of environmental groups and oil and gas companies. The program is voluntary and does not create any new requirements or restrictions for oil and gas companies. However, it is possible that state regulators will look to the Performance Standards when drafting new regulations and permitting requirements, or that the Performance Standards will become unofficial “best practices” in the industry.

To read the full entry, please click here.

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This post was written by Julia Butler, Don Ousterhout, and Todd Maiden.

On March 11, 2013, California State Senator Fran Pavley (D – Agoura Hills) introduced an amendment to Senate Bill 4, which the Senator herself had introduced on December 3, 2012, to further regulate hydraulic fracturing in California. Among other things, the amendment would (1) require the Secretary of the State Natural Resources Agency to conduct an extensive, independent and peer-reviewed scientific study of the potential hazards and risks that hydraulic fracturing treatments pose to natural resources and public, occupational, and environmental health and safety, and (2) preclude the Division of Oil, Gas, and Geothermal Resources (DOGGR) from issuing hydraulic fracturing permits from and after January 1, 2015, until the study, including the peer review component, has been completed. While the fracking permit moratorium would not go into effect until 2015 and the amendment theoretically requires the study to be completed before that date, the extensive requirements of the study, including the peer review component, suggest that completion of the study may take considerably longer and thus result in a lengthy period during which fracking would not be allowed to occur. This bill is set for hearing on April 9 before the Senate Natural Resources and Water Committee.

We will continue to monitor and report on legislative and regulatory developments regarding hydraulic fracturing in California.
 

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This post was written by Lynne Freeman and Chris Parrott

The UK government has given a boost to the country’s budding shale gas industry. In order to propose early investment in the industry, it has been announced that there will be a “generous new tax regime”, with tax breaks such as field allowances (which will allow developers to off-set profits from their shale gas exploitation against any other losses in the company, which they would not otherwise be able to do under UK law). The announcement came as part of the 2013 Budget Speech, given by George Osborne, Chancellor of the Exchequer.

Osborne said: “I want Britain to tap into new sources of low cost energy like shale gas. So I am introducing a generous new tax regime, including a shale gas field allowance, to promote early investment. And by the summer, new planning guidance will be available alongside specific proposals to allow local communities to benefit. Shale gas is part of the future, and we will make it happen.”

This further development, in addition to the lifting of the moratorium on fracking in December, gives momentum to the development of the shale gas industry in the UK. The next step is likely to be drafting of relevant legislation, a topic we have previously discussed; click here for further information.
 

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This post was written by Lynne Freeman, Nicholas Rock, Laura Riddeck

Key discussion points

• Energy crisis and new “dash for gas” set to ignite UK shale market
• Moratorium on exploration lifted
• New industry guidance issued, UK and EU shale-specific legislation under consideration
• Now is the time to “engage” and lobby for the regulation you want
• Introduction

On 13 December 2012, the UK moratorium on hydraulic fracturing (“fracking”) of shale gas was lifted. On 5 December 2012 the government published its Gas Generation Strategy paper. The two events are, we would suggest, closely connected.

On 19 February 2013 Alistair Buchanan, current head of Ofgem, the UK electricity regulator, articulated a stark vision of a Britain plunged into darkness, shorter working weeks and manufacturing shut downs as early as winter 2014 if urgent steps are not taken to address the country’s looming energy gap. As environmental regulations drive the shut-down of old fossil-fired plants, and a silver bullet of new nuclear remains mired in delay and arguments about the necessary level of subsidy; electricity generation capacity margins sit at their lowest levels since privatisation of the industry a generation ago. The misery of power cuts brought down at least two governments in the 1970s. The next general election in the UK is fixed for May 2015. If Mr Buchanan’s predictions are right and the weather is unkind, that could take place against a backdrop of one of the most miserable winters in recent memory.

To read the full entry, please click here.

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This post was written by Phillip H. Babich

The U.S. Department of Interior (DOI) has approved three major renewable energy projects. Two have been sited in California, and another is sited in Nevada. The two California projects are solar energy facilities. The McCoy Solar Energy Project is a 750-megawatt photovoltaic solar facility that would be one of the largest solar projects in the world. A 12.5-mile generation transmission line would connect the project to Southern California Edison’s Colorado River Substation. The Desert Harvest Solar Farm is a 150-megawatt photovoltaic facility. The project also includes an on-site substation and 230-kilovolt line to the Red Bluff Substation, which will connect the project to the Southern California Edison regional transmission grid. Both projects will be located in California’s Riverside East Solar Energy Zone (SEZ), one of 18 such zones on land held by the Bureau of Land Management (BLM), a division of the DOI. The Nevada-based project is the Searchlight Wind Energy Project, a 200-megawatt project that will be located on BLM land about 60 miles southeast of Las Vegas.

The two California solar projects, approved on March 13, 2013, add to the DOI’s progress in furthering the Obama Administration’s goals on solar energy which were articulated in the Department’s Solar Programmatic Environmental Impact Statement (Solar PEIS).

In January, the BLM approved a new SEZ in Arizona. Known as the Agua Caliente SEZ, this area opens up 2,550 more acres of BLM land to be used for utility-scale solar energy development under the Solar PEIS, which was approved and adopted as amended by a Record of Decision (ROD) on October 12, 2012.

The Agua Caliente SEZ is located approximately 120 miles south east of Phoenix and is part of the Yuma Resources Management Plan (RMP). The BLM chose this location for its proximity to transmission lines or systems, roads and infrastructure. The SEZ also has known environmental or cultural constraints that have been deemed acceptable for purposes of solar development.

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This post was written by Richard A. Ceeney, Christopher Parrott, Stefan Schmitz

In December 2012 the UK government published its response to the consultation on the Renewables Obligation banding review. This will result in the level of Renewables Obligation (RO) support being cut for solar projects commissioned after 31 March 2013, with further cuts to follow.

Although the cuts will not be as severe as initially proposed, the reduction from the current 2 Renewable Obligation Certificates per megawatt hour will still be more severe than many in the solar industry had been hoping for and will have an effect on the number of viable projects. At the time of writing, we are already seeing a huge rush of large-scale projects under construction – or to be constructed – in order to be accredited before 31 March deadline. For example, Solarcentury is hoping to complete the construction of a 6.3MWp park at Chalcroft Farm near Southampton within three months; Hive Energy is investing £72 million in nine solar parks, all of which it hopes to be operational by the end of March.

A report by market analyst Solarbuzz notes that this push to complete large-scale projects will mean that the UK solar market will exceed 1.6GWp; 94% of this capacity will have been installed within the past two years. But what will happen after 31 March? We have set out below a few issues that will need to be considered when ascertaining whether a project will be viable.
 

To read the full article please click here.

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This post was written by Sarah Rogers, David G. Handley, Diane Galloway, Richard M. Gunn, and Lisa Mason

Following a review by the Correspondence Group established by the Marine Environment Protection Committee in 2006, various amendments to MARPOL Annex V Regulations for the Prevention of Pollution by Garbage from Ships took effect on 1 January 2013.

The revised Annex now prohibits the discharge of all garbage into the sea, with limited exceptions. Importantly, this prohibition now affects the disposal of cargo residues and this client alert will focus on those amendments which change the way cargo residues are considered, especially when they are classified as harmful to the marine environment (“HME”).

To read the full entry please click here.
 

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On Thursday, February 28  speakers presented on the latest developments on California Cap and Trade, including updates following California's February 19, 2013 GHG allowance auction ("February Auction"). The February Auction will offer year 2013 current vintage allowances and year 2016 future vintage allowances for sale. Further, ARB plans to conduct the first quarterly reserve sale on March 8, 2013.

Topics:

• Auction Comments
• Hot issues at CARB, including the reserve sale
• Offset Update
• Spotlight: EU-ETC Update

The speakers were joined by London partner, Peter Zaman, who discussed recent trends and issues in the EU-ETS carbon market and lessons to be drawn for the California carbon market.

The slides and audio are available for download.

Be sure that we will monitor and analyze these issues and many other environmental and energy issues through the year on our blog and in future teleseminars.

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