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What will be the top green stories of 2014?

8 Jan 2014

greatlakesAs this new year kicks off, we thought we’d look ahead at what we think may be the big stories of 2014 at MichiganGreenLaw.com, in no particular order:

Wetlands – Will EPA and the Army Corps of Engineers finalize guidance regarding the scope of waters regulated under the Clean Water Act? Or will there be new rules or even new legislation?  There are members of Congress on  both sides of this issue and it is unclear which way this issue will go, although the federal trend is to try and govern as many bodies of water no matter what. This fall, EPA published a draft connectivity analysis which many view as a prelude to new regulations attempting to vest the federal government with broad jurisdictional over virtually every drop of water in the country. It will be interesting if the federal government tries to delete the “significant” portion of the Rapanos “significant nexus” test.

• Hydraulic Fracturing –  this continues to be a lightning rod for controversy.  At the end of 2013, the Associated Press reported on both alleged and confirmed environmental problems in 4 states including Ohio and Pennsylvania.  Michigan looks to beef up its oversight of, and its communications regarding, fracking proposals and operations.  The University of Michigan continues to study the technical issues.  The focus on this issue seems to be shifting toward the volumes of water used in fracturing and monitoring withdrawals used for oil and gas production. It appears that the 2012 U.S. Department of the Interior draft rules for fracking on federal and Indian lands remain draft – will they ever be finalized?

• MDEQ Brownfield Process Streamlining.  MDEQ has promised to convene a short-term task force to work on harmonizing, improving and streamlining the various funding mechanisms currently used to incentivize brownfield redevelopment. This can only be a plus.

• MDEQ Cleanup Rules – as required by the Legislature, MDEQ proposed adopting its previously informal standards as formal cleanup rules late in 2013.  The MDEQ will continue to work on improving and in some cases broadening its cleanup rules and criteria – we expect more work on the assumptions of exposure underpinning the standards, more work on vapor intrusion standards and more work on standards and processes applicable to groundwater venting into surface waters.  MDEQ also continues to discuss more rules and standards defining what constitutes “due care” which is an issue for property owners who are not liable pursuant to a BEA and for other reasons.

• Keystone Pipeline.  As we predicted, President Obama and Congress continue to be locked in a politically charged dispute over the Keystone XL pipeline, a proposed 1,700-mile oil pipeline from Canada to Texas.  The President deferred it and lately the pundits have argued that pipelines are safer than transporting shale oil by truck and train.

• Energy Policy In Michigan – at the end of the year, and after a year of “listening” sessions and collecting information, Governor Snyder indicated that he intends to seek legislation improving Michigan’s energy policies, focusing on lowering costs, improving reliability and minimizing environmental impacts.  This will be interesting.

EPA issues its new year’s resolution – ASTM 1527-13

31 Dec 2013

epa_logoAs you know, at Halloween, EPA gave us a “trick” by withdrawing its proposed rule adopting the new ASTM all appropriate inquiry standard.  As you may remember, EPA proposed to leave the old, 2005 standard in place and also allow the use of the new 2013 standard.  This caused some confusion and angst and resulted in EPA’s October 31st action.

Well, as we get ready to start 2014,on December 30th, EPA published an announcement that it was immediately adopting the 2013 standard as satisfying the Federal All Appropriate Inquiry “safe harbor” protecting a new owner, tenant or foreclosing lender from Superfund liability.    EPA kept its “two track” approach of recognizing both the 2005 and 2013 standards as acceptable but repeatedly asserted that it encouraged and anticipated that environmental professionals would “embrace the increased level of rigor” of the 2013 standard and that it intended to publish a proposed rule to remove references to the 2005 standard but wasn’t doing that just yet.  Most interestingly, EPA stated that if it determines in the future that the enhanced standards of the 2013 standard are not being widely adopted, EPA may examine the need to explicitly require the actions specified in the 2013 standard.  With threats like that, it seems likely that the 2013 standard will become de rigueur.

Lake Erie – loaded with plastics?

20 Dec 2013

t1_11246_1533_LakeErie_143_250mPoor Lake Erie – as it is downstream from farms and wastewater treatment plants in Ohio and Michigan, it’s an algae magnet;  with its shallow and warm waters it is a good habitat for Asian Carp and now comes word of one more problem heaped on poor Erie’s shoulders.  As I blogged about this summer, there is a serious concern regarding “microbeads” from consumer products are winding up in the Great Lakes.  As Lake Erie is downstream of Wisconsin, Illinois, Michigan, Ohio and Ontario, that concern all flows toward Erie.  A new report from SUNY indicates that there is more plastic in Lake Erie per square foot than even the Pacific Plastic Gyre.    How does one know if the products (which can include toothpaste!) you buy have these microbeads?  Look at the label – if you see  Polyethylene, Polypropylene, Polyethylene Terephthalate, Polymethyl methacrylate or Nylon – the product may have an issue.  There’s an App – that scans the UPC bar codes and looks for microbead ingredients to warn you. I am trying it out but, thus far, it hasn’t recognized many products.

The Ticking Reopener “Timebomb”

9 Oct 2013

For 18 years, Michigan has touted its BEA program as the best in the US for land purchasers.  It has been viewed as a virtual “get out of jail free” card relating to environmental contamination.  This May, the MDEQ issued a guidance document regarding vapor intrusion and closures.  I blogged about it previously.

This guidance poses a significant challenge to property owners because of the dramatically lower standards it imposes on volatile contaminants.  By example, MDEQ ratcheted down the level for dry cleaning solvents in groundwater from 25,000 parts per billion (ppb) to 9.4 ppb (and possibly as low as 5 ppb).

There is a serious risk that owners of former gas stations, manufacturers and dry cleaner sites, even those with BEAs, may have to investigate and even remediate contamination that, for the last 18 years was deemed “ok.”

Michigan law requires even non liable landowners to exercise due care including conducting response activity to mitigate unacceptable exposures and allow for the intended use of the facility in a manner that protects the public health and safety.  We are starting to hear that lenders and the MDEQ are making noises about applying the new vapor closure guidance as a due care reopener.  The MDEQ reports that it has received over 17,000 BEAs.  This new guidance (which may be subject to a number of challenges) opens the possibility that anyone who bought a property and thought their BEA protected them could be in an expensive fix.

Is the 18 year ride over?

Manure Digestion/Energy Generation

14 Aug 2013

Tuesday, I traveled to Michigan State University (MSU) for the start up of MSU’s South Campus Anaerobic Digester (SCAD). Reportedly, this is the largest such digester in the United States that is owned by a university.

Anaerobic digestion converts organic materials (feedstocks) without oxygen into biogas.

Once fully operational, MSU’s digester will use roughly 17,000 tons of organic waste from MSU and elsewhere nearby to produce biogas that will generate over 2.8 million kWh of electricity per year.

Most of the system’s feedstock will be dairy manure from the MSU Dairy Teaching and Research Center, with some food waste from campus dining halls, fruit and vegetable waste from a nearby Meijer Distribution Center, and fats, oil and grease from local restaurants.

Biogas produced will power a 450 kW combined heat and power system. The electricity generated will power buildings on the south side of campus.  Hot water generated will maintain the digester temperature at 100 degrees F and to help heat other nearby buildings.

The solids and liquid remaining after digestion (digestate) will be pumped to a solid-liquid separator; solids will be composted; the liquid will be stored in the larger tank in the photo and will be applied to the land as carbon-rich fertilizer.

While the technology is proven, MSU will test this digester to see how this can be implemented in a cost-effective manner. The payback at this point is projected to be between 7 and 12 years. There may be many opportunities for these to be located near large farm “hubs” and even as part of municipal wastewater treatment – if they can be operated economically.

Invasive Species and Unintended Consequences

12 Jul 2013

One action begets a reaction and another and another

Before I took off for vacation, I decided to finish reading 1493 which may be the most thought provoking book on invasive species I’ve ever read.  Author Thomas Mann takes a look at the last 500+ years of world history, economics, anthropology and environment and explains using interesting vignettes how the world we live in is not anything like the world of 1491.

He discusses topics like:

  • malaria and its relationship to the US slave trade;
  • sugar, silver and trade with the far east;
  • how South American potatoes and fertilizer revolutionized Europe and;
  • once the “eggs were all in the basket,” how European farming practices made almost inevitable the potato blight that virtually depopulated Ireland in the mid 1800’s.

He raises many interesting questions, some of which are still being asked today, as in this article regarding the popularity of the “superfood” quinoa as “gentrifying” or changing the South American farmers who used to eat it as a subsistance food.

A fascinating book which raises almost as many questions as it answers and shows how human actions – sometimes on purpose and sometimes not, have resulted in ecosystems (as well as economic systems) which are entirely foreign to the lands they occupy today.  We’ve blogged about Asian Carp and many of us are aware of invasive species like kudzu and purple loosestrife. But I never thought of wheat, onions, earthworms, potatoes, sugar, bananas and horses as invasive species.  I highly recommend this book.

What can one man do against climate change?

9 May 2013

So, the President said in January and in February, that climate change was one of his priorities and Congress could either work with him or he’d go it alone.   What might the President do on sustainability and climate change without Congress ? Well, the Armed Forces are thinking about, talking about and planning for heightened conflicts caused by climate change and the challenges of waging war in a more intense environment.

What else might the President do? He could:

1.  Impose heavier regulations on existing power plants, which reportedly account for 1/3 of U.S. greenhouse gas emissions.

2.  Fully disapprove the Keystone XL Pipeline which many have said will result in few permanent jobs but perhaps the “dirtiest” oil available.

3. Attempt to regulate fracking – which will be difficult under the current Congressional regime.

4. Ramp up government procurement – making sustainability a mandate; retrofitting government buildings and pushing renewable power for government operations.

5. Attempt to require methane capture during natural gas production.

6.  Continue pressure on automakers to improve gas mileage.

7. Adopt even more energy efficiency standards for household appliances and industrial equipment.

8. Promote planning and codes for resilience in design and construction to guard against catastrophic harms from events like Hurricane Sandy.

Interestingly, without governmental involvement, the market itself appears to be pushing companies to assign monetary value to their impacts on the environment as part of an overall drive toward “sustainability.”  Once you start measuring the impacts, it becomes easier for shareholders and the marketplace to drive less efficient companies toward efficiencies.  So, perhaps the President doesn’t need to do anything.