Environmental Law Blog

Brownfield redevelopment funds via Brownfields Redevelopment and Intermodal Promotion Act

8 Jul

The Illinois General Assembly passed the Brownfields Redevelopment and Intermodal Promotion Act, HB 2212, at the end of the 2013 Spring Session.  The statute creates the South Suburban Cook County Brownfield Redevelopment Zone in Posen, Dixmoor, Riverdale, Doloton, Markham, Harvey, Phoenix, South Holland, Hazel Crest, East Hazel Crest, Thornton, and Homewood.  The statute’s goal is to redevelop brownfields in the zone by leveraging the existing infrastructure around the CN Intermodal Terminal and the Union Pacific Intermodal Terminal.  As a result, eligible projects are limited to those classified by the Urban Land Institute as: warehouse distribution, manufacturing (light or metal fabrication), or freight forwarding.  The statute further lists eligible secondary categories under each of those primary categories.

The statute creates the South Suburban Brownfields Advisory Council to oversee implementation of the statute.  The statute would create funds for the Council to distribute by  collecting the incremental individual income tax generated from employees in the zone, up to $3 million annually.  The Council could reimburse eligible developers for a variety of eligible activities, including: environmental studies and remediation; land acquisition and demolition; recruiting and training minority residents of the zone; and, upgrading the public infrastructure.

If you have questions about the advantages of redeveloping brownfields and the Brownfields Redevelopment and Intermodal Promotion Act, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

Benefit Corporations- Are they forever?

8 Jul

Recently, I have been part of several discussions of Benefit Corporations revolving around what benefit corporation status protects and how exactly it does it.  One of the common misconceptions is that becoming a Benefit Corporation cannot be reversed and, therefore, the corporation must always work for the general public benefit and, if applicable, any specific public benefits adopted.

In reality the Illinois Benefit Corporation Act, 805 ILCS 40, only makes the decision to cease being a benefit corporation or remove a specific general purpose more difficult by requiring a “minimum status vote”  for a corporation.  The statute requires such a decision to be made by a 2/3 supermajority vote of the shareholders.  In addition, the statute overrides any provisions in the by-laws that preempts certain classes of stockholders from voting.  As a result, all stockholders are entitle to vote on whether the benefit corporation will covert to a corporation or whether the corporation will cease to pursue a specific public benefit.

Needless to say, both of these requirements make it difficult, but not impossible to achieve.  Perhaps more importantly, these requirements will give pause to anyone who is considering buying into a Benefit Corporation with the ultimate goal of stripping out the environmental and social stewardship provisions of the corporation.

If you have questions about Benefit Corporations, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

Asbestos: Five myths

5 Jul

In many respects asbestos has been a victim of its success.  In the early 20th century, asbestos was considered a wonder substance that had several uses and was very inexpensive.  The most common uses were as an insulator and as ingredient in building materials to provide a degree of fire resistance.  In many parts of the US with older building stock (e.g., Chicago), you can still find numerous residential buildings with asbestos siding and asbestos mixed into the plaster.  Many older commercial buildings still have asbestos containing plaster.  Asbestos is also resistant to chemical damage and was used very frequently in chemistry lab benches (yes, even your high school lab) and other surfaces that were in regular contact with corrosive chemicals.  Asbestos is also very effective at absorbing sound.  Many older, metal kitchen sinks have asbestos coating on the underside, not to provide insulation, but to minimize the noise from water hitting the sink.  As a result, asbestos was ubiquitous.

Unfortunately, it wasn’t until much later that efforts were taken to limit exposure to asbestos to minimize the risks of mesothelioma, a rare form of cancer caused by inhaling microscopic asbestos fibers.  In part, this was because there is a 20-30 latency period between the exposure to asbestos and the development of mesothelioma.  Another reason, at least for those not directly involved in the manufacturing of asbestos, was that it took years for asbestos containing materials to degrade sufficiently to release the asbestos fibers into the air and, it follows, for people to inhale these fibers.  Finally, information obtained during asbestos litigation established that many asbestos companies knew of the danger, but did not inform the public.

While almost everyone is familiar with asbestos, most people have misconceptions regarding asbestos.  Here are five of the most common:

1) Asbestos is banned.  Many asbestos containing products are still manufactured and legal to use.  US EPA banned asbestos products in 1989, but this rule was overturned in 1991.  Under the Toxic Substances Control Act, only the bans on corrugated paper, rollboard, commercial and specialty paper, and flooring felt as well as any new uses remain.  Under the Clean Air Act, spray applied asbestos is banned as well as asbestos for pipe insulation and block insulation on facility components (e.g., boilers), if the materials are either molded and friable or wet-applied (and friable after drying).  Under the Consumer Product Safety Act, asbestos in artificial fireplace embers and wall patching compounds is banned.

2) Asbestos must be removed.  In reality, asbestos can be remain in place or even be added to a building, see 1 above.  In many instances, the owners of buildings are required to conduct an asbestos study to determine the presence of asbestos containing materials, monitor it over time, provide appropriate legal notices, and train individuals who may be exposed to asbestos.

3) Building owners do not need to label asbestos containing materials.  In truth, not every asbestos containing item must be labeled, otherwise you could imagine a ridiculous situation requiring several thousand asbestos containing floor tiles in a building needed to be labeled.  That being said, the building owner does need to provide notice and can often bee done fairly unobtrusively in an entrance area.

4) I do not need to train my custodial staff.  Many levels of asbestos training exist and while custodial staff may not need high level training, they may need awareness training because they come into contact with asbestos.  For example, they may come across a broken floor tile or ceiling tile that contains asbestos.  It is also worth noting that if your custodial staff undertakes more than simple custodial actions and engages in maintenance, they may well need additional training.

5) The contract for my new construction guarantees there was no asbestos used.  Upon closer inspection, most architectural contracts state that no asbestos containing materials were specified for the project.  That is not to say that they were not used, it simply means they were not required to be used.  Again, as pointed out above, asbestos is not banned.

If you have questions about asbestos, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

 

Benefit Corporations- What is “general public benefit” and “specific public benefit”?

3 Jul

Recently, I have been part of several discussions of Benefit Corporations revolving around what benefit corporation status protects and how exactly it does it.  In particular, one of the conversations used George Zimmer’s recent ouster as the basis of the discussion.  In order to provide some clarity, I will be posting a series of blog entries discussing the various requirements and provisions of the Illinois Benefit Corporation Act.  While many of these provisions are identical to Benefit Corporation Acts in other states, if you are researching Benefit Corporation Acts in other states please consult the statutes in your state (or intended state of incorporation) as there may be differences or, as is the case in most states, there is not actually a Benefit Corporation Act on the books yet.

The heart and soul of the Illinois Benefit Corporation Act (and other such statutes) are that Benefit Corporations must promote the ”general public benefit” and may promote one or more “specific public benefits.”  A ”general public benefit” is defined under the Illinois Benefit Corporation Act as “a material positive impact on society and the environment, taken as a whole, assessed against a third-party standard, from the business and operations of a benefit corporation.”   The Illinois Benefit Corporation Act enumerates seven specific public benefits, including what amounts to a miscellaneous catch-all category: Continue reading 

New federal Underground Storage Tank (UST) rules in 2013

24 Jun

Over five years ago US EPA initiated a rule making to update its underground storage tank (USTs) regulations to reflect changes in technology since the rules were issued in the late 1980s and to reflect the requirements of the Energy Policy Act of 2005 (EPAct) in Title XV, Subtitle B.  Many of the updates involve changes to employee training, secondary containment requirements for tanks and piping, adding operation and maintenance requirements, and adding new leak detection and prevention technological requirements, among other updates.  US EPA currently projects that it will publish the final rule in the Federal Register in December 2013.

If you have questions about UST regulations, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

Governor Quinn signs Illinois fracking law

18 Jun

On Monday, June 17, Illinois Governor Quinn signed House Bill 2615.  The bill reflects an effort by industry as well as several environmental groups to develop meaningful guidelines to regulate fracking in Illinois.  The participating environmental groups took the view that, if they failed to participate in the process, a bill would be passed that did not have sufficient safeguards in place or no bill would be passed and fracking would take place in Illinois without any restrictions whatsoever.  In fact, the Illinois Department of Natural Resources has already received well-completion reports for fracking operations as companies look to tap the New Albany Shale formation in southern Illinois.

If you have questions about fracking in Illinois, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

 

D.C. battle over EPA Administrator nomination & the future of the D.C. Circuit

10 Jun

Gina McCarthy was nominated to take over as US EPA Administrator over three months ago. Last month her nomination passed out of the Senate Environment and Public Works Committee to the full Senate for a vote. Needless to say, the leadership of EPA is a source of contention between Republicans and Democrats. As a result Republican senators have been delaying McCarthy’s confirmation vote.

Another set of less obvious nominations that may have even more significant environmental repercussions was made last week. President Obama nominated Robert Wilkins, Nina Pillard, and Patricia Millett for the US D.C. Circuit Court of Appeals. Since federal agencies are typically sued over proposed regulations in the D.C. Circuit, the D.C. Circuit is a prime battleground for US EPA regulations. In fact, these appointments may be especially important as federal judges are appointed for life, unlike agency administrators who typically last only as long as the President who nominates them, if that long. The judges whose change to Senior Status in the Court of Appeals created two of the three vacancies served for 25 and 26 years. The third vacancy was created when John Roberts was elevated to the Supreme Court. Currently, the D.C. Circuit has four judges selected by Republic Presidents (three judges selected by George W. Bush and one by George H.W. Bush and four judges selected by Democratic Presidents (three by Bill Clinton and one by Barack Obama).

If you have questions about these appointments or how to make your voice heard, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Ethanol gas standard in jeopardy?

7 Sep

This summer’s drought has caused livestock feed prices to soar and livestock producers are feeling the heat on their bottom lines as well.  In order to lower feed prices, producers are asking the U.S. EPA to waive the Renewable Fuels Standards, which requires 13.2 billion gallons of ethanol to be added to gasoline this year.  If past years are any indication, they shound not expect any action from the agency.  For example, in 2008 the EPA did not issue a waiver even though corn prices rose due to increased fuel, fertilizer and other costs.

If you have questions about the Renewable Fuels Standard, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

So you think you know what is biomass?

5 Sep

At its most basic level biomass is usually considered organic material that may be burned to generate heat/electricity or converted to a liquid or solid fuel.  Biomass may be plant material: crops grown specifically to be a fuel (e.g., switchgrass and various prarie grasses); “waste” components of a plant (e.g., corn stover or sawdust); or plant derived products that no longer serve their original purpose (e.g., waste pallets or wood from demolished building stock).  Biomass may also be animal waste, aquatic plants or municipal wastes.

Anyone contemplating a biomass project is most likely doing so with the intent of receiving (state or federal) funding or inclusion in a certain government program and should pay attention to how biomass is defined in that program.  On the federal level alone, biomass has over a dozen different definitions and several statutes actually have multiple definitions (the Energy Policy Act of 2005 has 6 different definitions).  These statutory definitions include and exclude various of the above mentioned biomass categories.  Several of the federal statutes also distinguish between biomass located on federal and private lands. 

Biomass energy also faces an uncertain future as US EPA determines whether to consider biomass energy as carbon neutral.

If you have questions about biomass and whether your project complies with a specific program, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Section 1603 Cash Grant Application Tips

5 Sep

Section 1603 of the American Recovery and Reinvestment Act provides a cash grant in lieu of ITC or PTC for renewable energy projects put into service on 2009, 2010 and 2011 or which commenced construction in 2009, 2010, or 2011.  The deadline for applications is the end of this month.  Needless to say “put into service” and “commenced construction” are both terms which the Treasury Department has fleshed out in respect to Section 1603 or during the course of other programs.

Here are some tips to maximize the likelihood of having a successful application and minimizing the stress of completing the paperwork:

1) Check both the actual phyiscal construction and 5% construction commencement boxes even if you are not absolutely sure you can support the claim at this time.  The Treasury Department will follow up for further information if your submission is incomplete, but the Treasury Department will not let you retroactively amend your application to check both boxes.

2) The 4B Narrative Box unnecessarily scares many applicants.  There are no magic words and the information included in the narrative box does not directly contribute to the success of an application.  The Treasury Department can use the information to help it get a better sense for the overall project, but the primary purpose appears to be to provide the department with descriptions of successful projects for agency reports.  Treasury officials have also recommended applicants include any other unique information about the project that cannot be included anywhere else.  

3) You do not need a SAM account to apply (the Treasury Department has been experiencing technical glitches with SAM as they migrate to a new system) for a Section 1603 Cash Grant.  You do need a SAM account to receive the grant once it is awarded.

4) If you do not receive your full award, you may choose to refuse the grant and opt for the ITC instead.

If you have questions about Section 1603 cash grant applications, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

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