Archive for March, 2011

31 Mar

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

Posted by Hester Serebrin in Canada, Patents and Innovation.

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.

30 Mar

Renewable Energy Permitting and Leasing on Tribal Lands

Posted by Hester Serebrin in Permits, Renewable Energy, Solar Power, Wind Power.

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provide several roadblocks to such renewable energy projects, having to do with landowner consent, tax credits, and an outdated approval process.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.

29 Mar

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

Posted by Hester Serebrin in CERCLA, Environmental Disclosure, Environmental Enforcement.

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

28 Mar

Revising FERC’s Horizontal Merger Policies

Posted by Hester Serebrin in DOJ, FERC, FTC, Mergers & Acquisitions.

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.

25 Mar

DOE Seeks Input on Rare Earth Metals Strategy

Posted by Hester Serebrin in China, Department of Energy, Rare Earth Materials, Renewable Energy, Technology.

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.

24 Mar

Bayer CropScience and Methyl Isocyanate (MIC): A Timeline

Posted by Hester Serebrin in Agriculture, Industrial Accidents, Toxic Substances.

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.

23 Mar

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

Posted by Hester Serebrin in Carbon Neutrality, Carbon Offsets, Carbon Sequestration, Coffee, Greenhouse Gas Emissions, Greenwashing, Marketing Claims.

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.

22 Mar

Nu-West vs. United States, CERCLA, RCRA, and More

Posted by Hester Serebrin in CERCLA, Environmental Disclosure, Environmental Enforcement, Mining, RCRA.

Photo by Marion Doss. Some rights reserved.

A few weeks ago we reported on a recent Form 6-K filed by Agrium Inc – the parent company of Nu-West Industries – in which they disclosed earlier investigations by both the Idaho Department of Environmental Quality (IDEQ) and the EPA regarding facility- and industry-wide compliance with CERCLA, as well as possible violations of RCRA and the CAA.

The Form 6-K also revealed that Nu-West had entered into a voluntary consent order with the EPA (signed in 2009), which compelled them to “identify actual or potential human and/or ecological receptors to fully determine the nature and extent of the presence and/or release of hazardous wastes at or from the facility.” The filing goes on to affirm that the company is “working cooperatively with EPA and the IDEQ to implement this environmental assessment.”

The facility in question is a phosphate mine located in Conda, Idaho, but this isn’t the first time Nu-West’s Idaho facilities have come under attack. Nu-West had been leasing land in Idaho from the US federal government for decades when they “discovered” selenium contamination at several mining sites in the1990s. They later claimed that the US had known about the contamination for years without making the information public.

In 2009, Nu-West filed a complaint against the federal government, asserting that once Nu-West found out about the contamination, they “worked diligently to investigate and remediate the Mine Sites,” while the United States “has not cooperated in any fashion.” They went on to argue that “[a]lthough the United States is the landowner and the party most responsible for the selenium contamination at the Mine Sites, the United States chose to oversee the cleanup of the Mine Sites itself and has demanded that Plaintiffs conduct the remediation at their sole expense.”

The complaint sought to recover approximately $10 million in costs incurred by Nu-West in connection with the remediation of the Idaho mine sites, and on March 4, 2011 – just three days before the Form 6-K was filed – the court sided with Nu-West. In the order, the court deemed the United States “an owner, operator, and arranger for purposes of 42 USC § 9607(a) with regard to the CERCLA clean up costs sought in this case.”

What does this mean for the US as landowner? While it’s currently unclear exactly how much the government will have to dish out in this particular case, according to Marten Law, the decision could give the government “a share of cleanup costs on leased property throughout the nation.” For thorough background on CERCLA liability, and the definitions of “owner,” “operator,” and “arranger” thereunder, I recommend reading Marten Law’s recent article on the case.

21 Mar

EPA Issues Landmark Mercury Pollution Standards for Power Plants

Posted by Kyle Hargus in Mercury, Particle Pollution, Power Plants.

Photo by Flickr user Kansas Poetry (Patrick). Some rights reserved.

On March 16th, facing down a final court deadline, the Environmental Protection Agency unveiled the proposed rule for the first-ever national emission standards for hazardous air pollutants from coal-and-oil-fueled power plants, and the first significant legislation of its kind since the passage of the Clean Air Act in 1990. These standards were developed based on the practices and results from the best functioning national plants, and would primarily regulate toxic gases such as mercury, arsenic, chromium, and nickel, as well as requiring mandatory safety upgrades and employment of effective pollution control devices for most U.S. plants. These changes have been in the works since December 2000, when the EPA first re-examined the standards proposed in the original Clean Air Act.

In a fact sheet published alongside the rule itself, the EPA offers a number of encouraging statistics that will result from the new standards. The new technologies employed would prevent 91% of mercury and acid gases and 55% of sulfur dioxide burned in power plants from escaping into the air. By 2016, according to the EPA, the legislation will prevent as many as 17,000 premature deaths and 11,000 heart attacks annually, with 120,000 fewer cases of aggravated asthma and 12,000 fewer emergency room visits. And while the rule is estimated to cost $10.9 billion annually, it will theoretically also save workers and affected persons between $59 and $140 billion in health costs, and could create as many as 31,000 short-term construction jobs implementing the new technology and 9,000 long-term utility-based jobs.

As the EPA has recently come under scrutiny from Republican lawmakers for enforcing new climate rules that the GOP argues could cripple the already troublesome federal budget, these new emission standards may be looked upon with some skepticism. However, the EPA, in their press release for the rule, assures skeptics that the new standards align strictly with an executive order signed into action by President Obama in January that requires new regulation by federal agencies to be as cost effective as possible.

18 Mar

SEC Disclosure & the Earthquake in Japan

Posted by Hester Serebrin in Environmental Disclosure.

A recent Legal Alert from Foley & Lardner reminds public companies to assess and report to the SEC any material effects that the devastating natural disasters in Japan may have had on their business. Companies in the nuclear power industry are particularly likely to be affected, but the general economic fallout from the events, as well as the impact on many Japanese manufacturers and suppliers could have a more widespread effect on a variety of public companies.

A search on our SEC Filings page reveals 69 (and counting – up to 900 as of May) such disclosures in the past week. The disclosures have mostly been made via the current report forms 8-K and 6-K, but a few annual and quarterly reports also reveal possible impacts. Of the 69, only 12 filings are from companies headquartered in Japan.

Here are some excerpts:

  • URANIUM ENERGY CORP | Form 8-K | 3/14/2011

[T]he uranium spot market has seen seesaw movement with the current trend being down as a result of several factors, the latest being the devastating earthquake in Japan and the resulting unforeseen developments at the Fukushima Nuclear Power Plant. As this news and reaction to it changes very quickly, the uranium market is quite volatile and the Company is awaiting to see where prices settle out on a more intermediate basis.

  • TOYOTA MOTOR CORP | Form 6-K | 3/15/2011

Regarding production at plants, Toyota has decided to suspend production at all Toyota Motor Corporation plants, as well as at all subsidiary vehicle-manufacturing plants on March 14th, March 15th, and March 16th…We are now conducting a detailed survey of each plant to determine the extent of any damage… In addition, in the event that any material impact to Toyota’s business performance is anticipated, Toyota will make additional disclosures.

On March 11, 2011, a magnitude 8.9 earthquake and subsequent tsunami struck Japan. Japan is Dole’s largest market in Asia with revenues of approximately $745 million in fiscal 2010. At this time it appears that there has been no damage to Dole’s infrastructure in Japan, and no Dole employees have been injured. We continue to monitor how the earthquake might affect the general economic and market conditions in Japan as the recovery moves forward.

  • FEDERAL EXPRESS CORP | Form 8-K | 3/17/2011

Also, the near-term impact of the earthquake and tsunami in Japan on operational costs, shipping patterns and the global economy is currently uncertain.

  • TAIWAN SEMICONDUCTOR MANUFACTURING CO LTD | Form 6-K | 3/17/2011

The impact of the recent earthquake and tsunami in Japan on TSMC’s operations is under control. While we do not exclude the possibility that this earthquake and its follow-on effects may impact the global electronics supply chain, TSMC believes that the impact will be brief, as we believe that global demand for electronics end-products remains strong. Should the demand be temporarily suppressed due to an unstable supply chain, the market will quickly meet this pent-up demand once the supply chain returns to normal.

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