Category: Environmental Alerts

Award to Mary Mendoza among the Highlights of the 2024 Texas Environmental Superconference

36th Annual Superconference This year’s 36th annual Superconference included well deserved recognition of Haynes & Boone partner Mary Mendoza, who received the “Jeff Civins Volunteer of the Year Award” for her contributions to the profession, the State Bar of Texas Environmental & Natural Resources Law Section, and the Superconference. This year, Mary was a key […]

Written by on August 5, 2024

EPA’s Inspector General Criticizes Agency Oversight of California and Texas Air Compliance Programs

EPA’s Office of Inspector General (OIG) issued a report criticizing EPA’s oversight of the Texas Commission on Environmental Quality (TCEQ) and California’s South Coast Air Quality Management District (South Coast). OIG said that TCEQ and South Coast failed to properly identify and regulate certain air pollution sources, partly due to EPA’s poor oversight. SM-80 Sources […]

Written by on July 29, 2024

Fifth Circuit Tells District Court to Reconsider because Chevron Deference Is Gone

Various states, corporations, trade associations, and individuals sued the US Department of Labor (DOL), asserting that DOL’s rules allowing retirement plan managers to consider “factors that are not material to financial performance” violate federal law. District Court employed Chevron Deference The district (trial level) court determined that DOL was within its discretion to allow plan […]

Written by on July 22, 2024

Oil and Gas Producer Agrees to Record CAA Penalty

On July 11, 2024, the US Department of Justice announced that an oil and gas producer has agreed to pay a $64.5 million penalty to settle allegations of Clean Air Act (CAA) violations. According to DOJ’s news release, the penalty is “the largest ever for violations of the Clean Air Act at stationary sources…” Major […]

Written by on July 15, 2024

Inspections Identify Widespread Noncompliance at NM Permian Basin Facilities

A team of inspectors, fourteen from USEPA and five from the New Mexico Environment Department (NMED), inspected 124 oil and gas facilities operated by eight companies in the New Mexico portion of the Permian Basin. According to EPA’s news release of July 5, 2024, “75 of the facilities—60 percent—had emissions of Volatile Emission Compounds (VOC) […]

Written by on July 10, 2024

US Supreme Court Puts Chevron Out of its Misery

On June 28, the Supreme Court of the United States (SCOTUS) eliminated Chevron deference. In holding that Chevron was inconsistent with the Administrative Procedure Act (APA), SCOTUS said courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of […]

Written by on July 1, 2024

Texas Supreme Court Upholds Emergency Utility Orders

During the winter storm in February 2021, the Texas Public Utility Commission (PUC) issued two emergency orders that raised the price of electricity “to reflect the scarcity of supply, thereby incentivizing generators capable of adding supply to do so and large industrial users to reduce their demand.” A power company, claiming PUC’s orders caused it […]

Written by on June 17, 2024

Norfolk Southern Enforcement Settlement Estimated to Exceed $1 Billion

The US Department of Justice (DOJ) issued a press release announcing it and EPA have reached a settlement with Norfolk Southern “to address and pay for the damage caused by the Feb. 3, 2023, train derailment in East Palestine, Ohio.” DOJ said, “Norfolk Southern estimates that it will spend more than $1 billion to address […]

Written by on June 3, 2024

Chemical Plant Explosion Enforcement Case Settles for $30 Million in Penalties

A 2019 explosion at a petrochemical plant caused “injuries, evacuations and significant air pollution,” according to the news release of the US Department of Justice (DOJ) announcing the settlement. The explosion also led to the company’s bankruptcy filing. Civil and Criminal Cases DOJ filed civil and criminal cases, with settlements submitted in both cases on […]

Written by on May 28, 2024

Penalties for Ignoring Exceedances of Stormwater Benchmark Limits

EPA inspected a company and found numerous violations, including “failure to implement corrective actions following continued benchmark exceedances.” According to EPA’s news release announcing settlement of an enforcement action, the company will pay $225,000 in penalties and implement “extensive remedies to come into and remain in compliance.” Operators Must Act when Benchmarks Exceeded Stormwater permits, […]

Written by on May 20, 2024

Fifth Circuit Upholds Air Permits for LNG Facility

The Louisiana Department of Environmental Quality (LDEQ) issued permits to allow construction of a liquefied natural gas (LNG) facility. Sierra Club challenged the action in the US Court of Appeals for the 5th Circuit. Jurisdiction and Standard of Review LDEQ argued that the 5th Circuit did not have jurisdiction. The 5th Circuit disagreed; the federal […]

Written by on May 6, 2024

EPA Announces New Civil-Criminal Enforcement Coordination Policy

On April 23, 2024, EPA issued a news release announcing its Strategic Civil-Criminal Enforcement Policy, whose purpose is “to strengthen the partnership between EPA’s civil and criminal enforcement programs.” EPA views collaboration by the programs as “critical to promote robust and fair enforcement that holds polluters accountable, ensures justice for communities scarred by pollution, and […]

Written by on April 29, 2024

DOJ’s Environment and Natural Resources Division Issues 2023 Accomplishments Report

On April 19, 2024, the US Department of Justice’s Environment and Natural Resources Division (ENRD) issued “Accomplishments for Fiscal Year (FY) 2023.” The accompanying press release said the report “highlights ENRD’s work in 2023 to defend pollution control measures, approvals for renewable energy projects and federal stewardship of public lands, wildlife and natural resources.” Large […]

Written by on April 22, 2024

Chemical Company to Pay $1.4 Million in Chemical Accident Prevention Settlement

In 2021, EPA conducted a Virtual Partial Compliance Evaluation (VPCE) of a chemical manufacturing facility that identified violations of EPA’s chemical accident prevention requirements. In 2022, while EPA and the company were negotiating a settlement to resolve the violations found in the VPCE, the facility had a fire that resulted in a shelter-in-place order for […]

Written by on April 15, 2024

ITC to Pay $6.6 Million to Settle NRD Claims Resulting from 2019 Fire

In press releases issued April 2, 2024, the US Department of Justice (DOJ) and the Texas Attorney General (AG) announced settlement with Intercontinental Terminals Company (ITC) of claims for natural resource damages (NRD) resulting from the 2019 fire at ITC’s facility in Deer Park, Texas. Releases from Fire According to DOJ, releases of petrochemical products, […]

Written by on April 8, 2024

DC Circuit Upholds FERC’s Extensions of Construction Deadlines

The US Court of Appeals for the DC Circuit ruled that the Federal Energy Regulatory Commission (FERC) acted properly when it granted extensions of the construction deadlines for a pipeline and a liquefied natural gas (LNG) project. In Petitions for Review challenging FERC’s actions, Sierra Club asserted that FERC failed to follow its own regulations […]

Written by on April 1, 2024

EPA Issues Rule Requiring Facility Response Plans

On March 21, 2024, EPA announced issuance of a final rule requiring industrial facilities to prepare and submit to EPA facility response plans. In its news release, EPA said the rule is “to ensure facilities are prepared to respond to a worst-case discharge of hazardous substances.” Plan Requirements In its Rule Summary, EPA defines “worst-case […]

Written by on March 25, 2024

EPA Finalizes Standards for Emissions from Gasoline Distribution Facilities

On March 14, 2024, EPA announced final amendments to the Gasoline Distribution National Emission Standards for Hazardous Air Pollutants (NESHAP) and final updates to the New Source Performance Standards (NSPS) for Bulk Gasoline Terminals. According to EPA’s news release, the action will apply to storage tanks, loading operations, and equipment leaks but will not apply […]

Written by on March 18, 2024

Texas Challenges EPA’s Methane and Fine Particle Rules

On March 8, 2024, the State of Texas, the Texas Commission on Environmental Quality (TCEQ), and the Railroad Commission of Texas (which regulates oil and gas production in Texas), filed a Petition for Review in the U.S. Court of Appeals for the D.C. Circuit, challenging EPA’s recent rule that regulates methane and other emissions from […]

Written by on March 11, 2024

EPA Amends Risk Management Program

On March 1, 2024, EPA announced it had finalized amendments to the Risk Management Program (RMP). According to EPA’s news release, the amendment “covers all 11,740 regulated RMP facilities across the country and contains more rigorous requirements for a subgroup of facilities that are more accident-prone and pose the greatest risk to communities.” Specific Regulated […]

Written by on March 4, 2024

Fifth Circuit Withdraws LNG Permit Decision and Seeks SCOTX Guidance

In November 2023, the US Court of Appeals for the Fifth Circuit reversed a Texas Commission on Environmental Quality (TCEQ) decision to issue an air permit to a liquefied natural gas (LNG) facility. The 5th Circuit held that TCEQ had not adequately explained why this LNG facility could not meet the same limits as those […]

Written by on February 26, 2024

Prison Sentences for Corporate Officials in Explosion Case

A Vice President of Operations, a former Food Safety Superintendent, and a former Environmental Manager each received sentences that included two years in prison for their roles relating to an explosion that killed five employees at their company’s facility. The Vice President and Superintendent were convicted of multiple counts in a trial in October 2023. […]

Written by on February 20, 2024

EPA Issues Final Rule Lowering Air Quality Standard for Fine Particles

On February 7, 2024, EPA announced issuance of a final rule lowering the annual health-based national ambient air quality standard for fine particulate matter (PM2.5) from 12 to 9 micrograms per cubic meter. In 2021, the Biden administration started a process to reconsider a Trump administration decision to retain the 2012 standards. As a result […]

Written by on February 12, 2024

EPA Issues Text of Proposed Rules to Address PFAS and other Emerging Chemicals

On January 31, 2024, EPA’s Administrator signed proposals to formally publish two rules to address per- and polyfluoroalkyl substances (PFAS) and other emerging chemicals. One rule will amend the definition of hazardous waste as it applies to corrective action. The other rule will change the Resource Conservation and Recovery Act (RCRA) regulations by adding nine […]

Written by on February 5, 2024

Fifth Circuit Upholds EPA’s Nonattainment Designation for Two Texas Counties

After determining that sulfur dioxide concentrations in the air in two rural Texas counties exceeded the National Ambient Air Quality Standard, EPA designated these counties as “nonattainment.” The State of Texas and companies with operations in those counties filed Petitions for Review to the 5th Circuit claiming EPA’s designation was unlawful because 1) evidence available […]

Written by on January 29, 2024

Companies Agree to $7.2 Million NRD Settlement

Five companies agreed to pay a total of $7.2 million to settle natural resource damage (NRD) claims. The US Department of Interior (DOI) alleges that historical releases from a refinery complex have damaged creeks, wetlands, floodplain areas, and uplands near Lake Erie. The companies include the current owner of one refinery and the successor to […]

Written by on January 22, 2024

RCRA and CERCLA Rulemakings to Address PFAS

In addition to the recently announced EPA rulemaking to establish drinking water standards for some per- and polyfluoroalkyl substances (PFAS), EPA has also initiated rulemakings that will specifically address PFAS under the Comprehensive Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). PFOA and PFOS as CERCLA Hazardous Substances One […]

Written by on January 16, 2024

Company Agrees to PFAS Sampling Plan

A chemical manufacturer and EPA have executed an Agreed Order on Consent (AOC) that requires the company to sample and test for per- and polyfluoroalkyl substances (PFAS) in and near its manufacturing facility. EPA requested the PFAS sampling under Section 3013 of the Resource Conservation and Recovery Act (RCRA), which allows EPA to require specific […]

Written by on January 8, 2024

Texas Appellate Court Says Case Can Proceed against Environmental Engineering Firms

A Texas (mid-level) Court of Appeals reinstated a negligence case brought against two environmental engineering firms. Neighbors of a site being remediated alleged that the firms, which provided environmental engineering services and submitted reports to the Texas Commission on Environmental Quality (TCEQ) on behalf of the site’s owner, were negligent and the cause of damages. […]

Written by on December 18, 2023

Settlement of RCRA Claims Will Cost Recycler Millions

The Resource Conservation and Recovery Act (RCRA) encourages reuse and recycling, but it does not exempt recycling from its regulations. To settle allegations that its operations did not comply with RCRA, a recycler has agreed to pay almost $1.2 million in civil penalties and to implement compliance measures estimated to cost over $1.6 million. Recycling […]

Written by on December 11, 2023

Sixth Circuit Rejects PFAS Class Action

A federal district (trial level) court certified a class action lawsuit against 10 manufacturers of per-and polyfluoroalkyl substances (PFAS) on behalf of every person “subject to the laws of Ohio” who has “0.05 parts per trillion (ppt) or more of PFOA (C-8) [which is a particular type of PFAS] and at least 0.05 ppt or […]

Written by on December 4, 2023

Fifth Circuit Reverses TCEQ’s Issuance of Air Permit to LNG Facility

After unsuccessfully opposing an air permit before the Texas Commission on Environmental Quality (TCEQ) issued to a liquefied natural gas (LNG) facility, a local community organization filed a Petition for Review to the 5th Circuit. Failure to Explain More Lenient Emission Limits The Petition asserted that the permit’s emission limits for the LNG facility’s refrigeration […]

Written by on November 20, 2023

Company Pays Over $500,000 for Failure to Demonstrate Clean Air Act Compliance

The record-keeping requirements of Clean Air Act (CAA) permits can be challenging; failure to comply can lead to large penalties. EPA alleged that two facilities with common ownership failed to maintain records that demonstrated compliance, as required by their CAA permits; the company’s facilities paid a combined penalty of over $500,000 to resolve the enforcement […]

Written by on November 13, 2023

Eighth Circuit Rejects EPA Insecticide Ban

EPA banned the use of chlorpyrifos on food crops. The Eighth Circuit Court of Appeals vacated the ban and remanded the matter to EPA for further agency proceedings. Specifically, EPA misunderstood “the full scope of its discretion,” which is “[o]ne way an agency can act arbitrarily and capriciously…” Complete Ban Not the Only Option Although […]

Written by on November 6, 2023

Corporate Officials Convicted in Explosion Case

A vice president of operations and a former safety superintendent were convicted on multiple counts for their actions before and after an explosion at the company’s facility. The explosion resulted in five deaths and multiple injuries. The jury found the vice president made false certifications of environmental compliance before the explosion, ordered employees to falsify […]

Written by on October 30, 2023

Head of DOJ’s Environment and Natural Resources Division Highlights Priorities

Todd Kim, the Assistant Attorney General of the Environment and Natural Resources Division (ENRD) at the Department of Justice (DOJ), addressed the Fall Conference of the American Bar Association Section of Environment, Energy, and Resources. DOJ published Mr. Kim’s prepared remarks in a news release. Mr. Kim highlighted “two of the Administration’s key priorities: furthering […]

Written by on October 16, 2023

Transition to Natural Gas Is Responsible for Huge Decrease in GHG Emissions

On October 5, 2023, EPA published greenhouse gas (GHG) emissions data for 2022. The accompanying news release reported that GHG emissions from large industrial sources in 2022 were lower than 2021 emissions. Power Plants Transitioning to Natural Gas Power plants are by far the largest GHG emitting industrial sector, releasing five times more GHG than […]

Written by on October 9, 2023

EPA Enforcement Initiative: Methane Emissions from Oil and Gas Facilities and Landfills

On September 28, 2023, EPA’s Administrator for Enforcement and Compliance Assurance issued a memorandum “directing all EPA enforcement and compliance offices to address climate change, whenever appropriate, in every matter within their jurisdiction.” The memorandum builds on EPA’s “national climate enforcement initiative (NCEI)” issued in August, which “targets methane emissions from oil and gas facilities […]

Written by on October 2, 2023

Tenth Circuit Rejects Colorado’s Proposed SIP Revision

As required by the Clean Air Act (CAA), Colorado submitted, and EPA approved, a State Implementation Plan (SIP), which described how Colorado will attain and maintain compliance with CAA requirements. In 2018, EPA designated the Denver Metro-Front Range area as nonattainment for ozone, which required Colorado to submit a revised SIP for approval. Under the […]

Written by on September 25, 2023

Ninth Circuit Refuses to Stop Fire Management Projects in Yosemite N.P.

A Petition for Review challenged issuance by the US Army Corps of Engineers of a permit under section 404 of the Clean Water Act in connection with construction of a liquefied natural gas (LNG) terminal. The Petitioners alleged that the Corps improperly incorporated an Environmental Impact Statement issued by the Federal Energy Regulatory Commission (FERC), […]

Written by on September 18, 2023

Fifth Circuit Affirms Issuance by Corps of Engineers of Permit for LNG Terminal

A Petition for Review challenged issuance by the US Army Corps of Engineers of a permit under section 404 of the Clean Water Act in connection with construction of a liquefied natural gas (LNG) terminal. The Petitioners alleged that the Corps improperly incorporated an Environmental Impact Statement issued by the Federal Energy Regulatory Commission (FERC), […]

Written by on September 11, 2023

Delaware Supreme Court Refuses to Allow Suits for Only Increased Risk of Harm

Recently, the US Court of Appeals from the Third Circuit submitted to the Delaware Supreme Court this unsettled question of Delaware law: “[D]oes an increased risk of harm only constitute a cognizable injury once it manifests in a physical disease?” Physical Disease Necessary The Delaware Supreme Court answered: “an increased risk of illness without present […]

Written by on September 5, 2023

Clean Air Act Violations Will Cost Oil Company over $10 Million

To settle allegations of unauthorized air emissions, an oil and gas producer has agreed to pay a $5.5 million penalty and make upgrades to its facilities estimated to cost at least $4.6 million. According to EPA’s news release announcing the settlement, the company had violations at over 100 of its operations. The company failed to […]

Written by on August 28, 2023

New Texas Appellate Court for Cases with State Agencies

A recently enacted statute created the “Court of Appeals for the Fifteenth Court of Appeals District.” This new court will be an intermediate appellate court with limited jurisdiction and a district that includes the entire state. All other intermediate courts of appeal have more general jurisdiction and a specific geographic district within the state. As […]

Written by on August 14, 2023

Jeff Civins and Walt Shelton Honored at 2023 Texas Environmental Superconference

Crain, Caton, & James, P.C. was a sponsor of the 2023 Texas Environmental Superconference. Robert E. “Robin” Morse and I represented our firm among the approximately 400 who attended last week in Austin, Texas. 35th Annual Superconference This year was the 35th annual Superconference; topics included criminal enforcement of environmental laws, water resource challenges, environmental […]

Written by on August 7, 2023

Failure to Obtain Permit for Expansion Leads to $2.6 Million Penalty

A ferroalloy production company rebuilt one of its electric arc furnaces, which EPA alleged was a major modification to a major source. The company failed to obtain a permit, perform air quality modelling, or apply best available control technology (BACT) prior to construction. Total Cost over $9 Million A US Department of Justice (DOJ) news […]

Written by on July 31, 2023

EPA Region 6 Issues Advisory on Hazardous Weather Events

EPA Region 6, which includes Texas and Louisiana, issued a news release on July 18, 2023, reminding facility operators of their obligation to “maintain safety, minimize releases that do occur, and report chemical releases or oil spills and discharges in a timely manner” before and during hurricanes, tropical storms, and other hazardous weather events. Especially […]

Written by on July 24, 2023

Oil & Gas Producer Agrees to $1.3 Million Penalty for Air Emissions

A company operating in the Permian Basin agreed to pay a penalty of $1,285,000 to settle allegations of unauthorized emissions from its oil and gas facilities. Helicopter Detected Leaks EPA’s news release said it identified leaks from tanks, flares, and other equipment “using a helicopter equipped with a special infrared camera that detects hydrocarbon leaks.” […]

Written by on July 17, 2023

EPA Proposes New Reporting Requirements for Oil & Gas Sector

In a July 6 news release, EPA announced proposed changes to “reporting requirements for petroleum and natural gas systems under EPA’s Greenhouse Gas Reporting Program.” EPA said the changes were to comply “with the Methane Emissions Reduction Program under the Inflation Reduction Act.” Subpart W of GHG Reporting Program EPA proposes to amend subpart W […]

Written by on July 10, 2023

Clean Water Act Violations Lead to $1.9 Million Penalty

A company has agreed to pay $1.9 million to settle alleged violations of the Clean Water Act. The company also agreed to construct a new water treatment facility and conduct enhanced stormwater discharge inspections. 186 Alleged Violations According to the proposed Consent Decree and EPA’s news release, EPA and the state environmental agency allege the […]

Written by on July 3, 2023

Supreme Court of Texas Says Investors Not Liable in Plant Explosion Case

The Supreme Court of Texas announced that a direct or indirect owner of a company is not liable for the company’s actions as long as the company is a properly created business organization (corporation, limited liability company, or limited partnership) and the owner’s actions are “consistent with its investor status.” Claims that Investors Could Have […]

Written by on June 26, 2023

US DOJ and City of Houston Reach Agreement on City’s Response to Illegal Dumping

In July 2022, the US Department of Justice (DOJ) announced an investigation into charges the City of Houston discriminated against poor and minority neighborhoods in responding to reports of illegal dumping. On June 6, 2023, DOJ announced an agreement between it and the City; DOJ’s efforts will change from investigating the City to monitoring the […]

Written by on June 12, 2023

Settlement with $2.4 Million Penalty Helps Complete Sale of Facility

A company agreed to sell a major chemical manufacturing facility. The state environmental agency refused to transfer the water discharge permit to the buyer, due to the seller’s past and ongoing discharge violations. The state told the seller it would not transfer the permit without a corrective mechanism in place, enforceable as to the seller […]

Written by on June 5, 2023

US Supreme Court Defines WOTUS

In 2022, when the US Supreme Court agreed to hear Sackett v. EPA, the Court indicated it would consider “the proper test” for determining when “wetlands” should be considered “waters of the United States” (WOTUS) “under the Clean Water Act, 33 U. S. C. § 1362(7).” On May 25, 2023, the Court decided Sackett, announcing […]

Written by on May 30, 2023

Record-Setting Penalty in Air Emissions Case

According to EPA’s May 17, 2023 news release, a settlement over refinery emissions includes “the largest civil penalty ever secured for a Clean Air Act stationary source settlement.” The settlement will also require installation of “control technology expected to reduce benzene by an estimated seven tons per year, other hazardous air pollutants (HAP) by 28 […]

Written by on May 22, 2023

Ninth Circuit Upholds Liability in Groundwater Contamination Case

A city alleged it had to spend millions to lower the concentration of a toxic chemical in its water supply to meet state-mandated safe levels. The city claimed a specific fertilizer was the cause and sued the company that imported and sold it. A jury determined 1) the fertilizer was defective, 2) the defect caused […]

Written by on May 8, 2023

Refinery to Pay $27.5 Million for Violations of Prior Settlement

EPA alleges a refinery violated a Consent Decree, issued by a federal court in 2016, by failing to comply from 2018 through 2020 with the nitrogen oxide emission limit of 20 parts per million at the refinery’s fluid catalytic cracking unit (FCCU). The 2016 Consent Decree settled prior air pollution allegations. Consent Decree Modification In […]

Written by on May 1, 2023

Gas Processors Pay Millions to Settle Air Pollution Cases

EPA and the US Department of Justice issued a news release announcing settlements with three national gas processing companies; they will pay a combined $9.25 million in penalties in three separate settlements. In addition to the federal government, the companies are resolving related allegations from six states and an Indian tribe with the settlements. Focus […]

Written by on April 24, 2023

Improper Handling of Lab Waste Leads to $600,000 Penalty

During an inspection, EPA discovered that a company was not analyzing the waste from its laboratory. Enforcement Action Alleging Lab Waste Was Hazardous EPA initiated an enforcement action, alleging the company violated the Resource Conservation and Recovery Act (RCRA) by 1) failing to determine that the waste was hazardous; 2) treating, storing, and disposing of […]

Written by on April 17, 2023

Settlement of Air Pollution Case Will Cost Oil and Gas Producer Millions

To settle an air pollution enforcement case, an oil and gas producer will pay $1.15 million in civil penalty, spend at least $1.25 million on a supplemental environmental project (SEP), and incur at least $2.5 million in costs to upgrade its facilities, according to a US Department of Justice (DOJ) news release. Flyover Surveillance and […]

Written by on April 10, 2023

DOJ and EPA Sue Norfolk Southern for East Palestine Derailment

On March 30, 2023, the US Department of Justice (DOJ) on behalf of the US Environmental Protection Agency (EPA) brought a civil suit against Norfolk Southern Railway Company and its parent, Norfolk Southern Corporation. DOJ’s Complaint alleges the February 3, 2023 derailment in East Palestine, Ohio caused violations of the Clean Water Act (CWA). DOJ […]

Written by on April 3, 2023

Stormwater Violations Lead to Large Penalty

In 2015, as a result of an environmental audit, a multi-state freight carrier reported to EPA that several of its facilities did not have stormwater permits or did not comply with stormwater discharge requirements. Violations Continued Beginning 18 months after the company’s initial report, and continuing for over three years, EPA and several state agencies […]

Written by on March 27, 2023

Texas Supreme Court Reinstates Flood Case against City

During a very intense rain event, a city employee closed a flood gate. Flood waters damaged upstream homes. The homeowners sued the city, alleging the city’s employee was negligent in closing the gate and not reopening it during the storm. Jurisdiction at this Stage Asserting sovereign immunity, the city requested dismissal for lack of jurisdiction. […]

Written by on March 13, 2023

Texas Supreme Court Upholds Dismissal of Toxic Tort Case

Farmers alleged that “herbicide drift” from aerial spraying damaged 111 cotton fields. The trial court struck the farmers’ causation experts and dismissed the case. An intermediate appellate court ruled the trial court should not have struck them, but the Texas Supreme Court determined the trial court was correct and again dismissed the case. In upholding […]

Written by on March 6, 2023

D.C. Circuit Upholds FERC Interpretation Despite Dissent Claiming “Chevron Maximalism”

The D.C. Circuit Court of Appeals reviewed a decision of the Federal Energy Regulatory Commission (FERC) that a solar facility that generated electricity met the statutory definition of “small.” Federal law forces public utilities to buy the power from “small” solar facilities. Definition of “Small” The statute says that power production capacity of no more […]

Written by on February 21, 2023

Tenth Circuit Dismisses New Mexico’s Challenge to Nuclear Waste Storage License

Fort Bend County sued the US Army Corps of Engineers (USACE) under the Administrative Procedure Act (APA), claiming USACE failed to comply with its regulatory obligations to protect upstream landowners from flooding in the Buffalo Bayou watershed in and near Houston, Texas. Dismissal and Reversal The district (trial level) court in Houston dismissed the suit, […]

Written by on February 13, 2023

Fifth Circuit Reverses Dismissal of Ft. Bend County Flood Suit against USACE

Fort Bend County sued the US Army Corps of Engineers (USACE) under the Administrative Procedure Act (APA), claiming USACE failed to comply with its regulatory obligations to protect upstream landowners from flooding in the Buffalo Bayou watershed in and near Houston, Texas. Dismissal and Reversal The district (trial level) court in Houston dismissed the suit, […]

Written by on February 6, 2023

Supreme Court of Texas to Consider Investor Liability in Plant Explosion Case

On February 22, 2023, the Supreme Court of Texas will hear oral arguments in a Multi-District Litigation case. Certain indirect investors in a petrochemical company have requested dismissal of suits filed against them by persons alleging injuries from an explosion at a facility owned by the company. Investors Allegedly Responsible The investors are private equity […]

Written by on January 30, 2023

Environmental Groups Challenge Approval of Deepwater Oil Export Terminal

The Sierra Club, the Center for Biodiversity, and several local environmental groups filed a Petition for Review (PFR) challenging the action of the US Maritime Administration (MARAD) relating to the Sea Port Oil Terminal (SPOT). According to Sierra Club’s press release, the groups seek review of the Record of Decision and underlying Environmental Impact Statement […]

Written by on January 23, 2023

Failure to Meet Industry Standards Leads to Significant Enforcement

EPA inspected several facilities of a large commodity and specialty chemical distributer. The inspections identified failures of the company to comply with industry standards when handling anhydrous ammonia, aqueous ammonia, chlorine, and formaldehyde. EPA initiated an enforcement action, asserting that noncompliance with industry standards violated the Clean Air Act (CAA), especially the CAA’s General Duty […]

Written by on January 9, 2023

EPA and Corps Issue New WOTUS Rule-Issue Currently before US Supreme Court

On December 30, 2022, EPA and the US Army Corps of Engineers issued a Final Rule addressing the definition of “waters of the United States” (WOTUS) with the goal of “defining the scope of waters protected” under the Clean Water Act (CWA). On the same day, the US Department of Justice (DOJ) informed the US […]

Written by on January 3, 2023

Supreme Court of Texas Limits Cell Phone Discovery in Toxic Tort Case

A reactor at a chemical manufacturing facility ruptured, releasing flammable gas that ignited and burned several individuals. The injured persons sued, alleging the company’s workers were negligent, in part because they were distracted by using company-issued cell phones while monitoring the reactor. Events leading to the rupture began the day before it. The trial court […]

Written by on December 12, 2022

Supreme Court of Texas Says Defense Doctor Must Be Allowed to Examine Toxic Tort Plaintiffs

Several family members sued their apartment owner, claiming brain injuries from carbon monoxide exposure. The apartment owner requested that a doctor it chose be allowed to conduct examinations and testing of the plaintiffs. The apartment owner claimed it could not adequately respond to the plaintiffs’ allegations of causation and extent of injuries without its own […]

Written by on December 5, 2022

Violations of Stormwater Permits at Four Construction Sites Lead to over $1.3 Million in Civil Penalties

Four solar energy companies faced allegations they violated the Clean Water Act (CWA) by failing to comply with stormwater permit requirements during construction of large-scale solar generating facilities. The companies paid a total of $1.34 million to settle; each used the same contractor. Stormwater Permit Requirements for Construction Sites The CWA requires construction sites of […]

Written by on November 21, 2022

EPA Issues Supplemental Proposal to Control Methane from Oil and Gas Operations

On November 11, EPA issued a supplemental proposal on methane emissions. According to EPA’s news release, the proposal will create “common sense standards” designed to “protect workers and communities, maintain and create high-quality, union-friendly jobs, and promote U.S. innovation and manufacturing of critical new technologies, all while delivering significant economic benefits through increased recovery of […]

Written by on November 14, 2022

Emissions from Storage Vessels Lead to Multi-Million Dollar Settlement

An EPA inspection of a company’s oil and wastewater tanks led to enforcement. According to the news release from the US Department of Justice (DOJ) announcing settlement of the enforcement case, the inspection showed unauthorized volatile organic compound emissions “from pressurized gases venting through imperfectly sealed access hatches on top of the storage vessels, pressure […]

Written by on November 7, 2022

5th Circuit Says LDEQ Joinder Defeats Federal Jurisdiction

Claiming hazardous waste from a Louisiana manufacturing facility contaminated their soil and groundwater, landowners sued the facility’s past and present owners in state court. They also sued the Louisiana Department of Environmental Quality (LDEQ); the landowners claimed LDEQ knew for years the waste threatened to contaminate their property but failed to alert them. No Complete […]

Written by on October 31, 2022

UPS Agrees to $5 Million Penalty to Resolve Hazardous Waste Allegations

The Environmental Protection Agency (EPA) announced on October 19 it had reached a settlement to resolve hazardous waste allegations against United Parcel Service (UPS). According to EPA’s news release, UPS became subject to the Resource Conservation and Recovery Act (RCRA) and its regulations “when a package containing certain hazardous materials is damaged, as well as […]

Written by on October 24, 2022

Texas Appellate Court Dismisses Homeowners’ Flood Claims against River Authority

A group of Texas homeowners sued the San Jacinto River Authority, alleging the Authority’s release of water from Lake Conroe during Hurricane Harvey damaged their homes. A mid-level Texas appellate court ruled that the trial court should have dismissed the case for lack of jurisdiction; the appellate court reversed the trial court and rendered judgment […]

Written by on October 17, 2022

Chemical Company Reaches Natural Resource Damages Settlement

A chemical company addressed historical contamination at its manufacturing facility under the Superfund program through a series of administrative orders and a 2018 consent decree, which implemented the final remedial work. The decree expressly reserved the rights of the federal and state governments to pursue compensation for natural resource damages (NRD). NRD Compensation in Addition […]

Written by on October 10, 2022

Explosion and Fatalities Lead to $2.5 Million CAA Penalty

The Environmental Protection Agency (EPA) uncovered several violations of the Clean Air Act (CAA) when it investigated a 2017 explosion that killed three workers, injured seven others, and “launched a 100,000-gallon tank into the air and over a six-story building before it landed on mill equipment 400 feet away.” Failure to Follow “Hot Work” Procedures […]

Written by on October 3, 2022

Emissions of Hazardous Air Pollutants Lead to Million Dollar Penalty

A chemical company and the US Department of Justice (DOJ) have reached a settlement that requires the company to pay a civil penalty of $1,112,500. The company must also install controls and “low emissions” valves at an estimated cost of $730,000. In its news release, DOJ said the settlement addresses emissions of hazardous air pollutants […]

Written by on September 26, 2022

Court Affirms EPA Determination of CZMA Compliance

EPA designated an area of Long Island, New York to receive material from future dredging of Long Island Sound. The State of New York opposed the designation, arguing that EPA’s designation violated the Coastal Zone Management Act (CZMA). Arbitrary and Capricious Standard The US Court of Appeals for the 2nd Circuit affirmed EPA’s designation. In […]

Written by on September 12, 2022

5th Circuit Upholds $14.25 Million Penalty against ExxonMobil

On August 30, 2022, the US Court of Appeals for the 5th Circuit issued its third opinion in Environment Texas v. ExxonMobil, upholding the assessment of a $14.5 million penalty for Clean Air Act (CAA) violations at ExxonMobil’s massive refining and chemical complex in Baytown, Texas. Multiple Violations and an Issue of Standing In 2014, […]

Written by on September 6, 2022

EPA’s Approval of Changes to Texas SIP Does Not Have National Applicability

As required by the Clean Air Act, Texas submitted a State Implementation Plan (SIP) for approval to EPA. The SIP describes how Texas will attain and maintain compliance with Clean Air Act (CAA) requirements. Texas can change its SIP, subject to EPA’s approval, which may only be given if EPA determines the changes are consistent […]

Written by on August 29, 2022

Divided Texas Appellate Court Upholds Issuance of Air Permit for Facility Near a School

When deciding to issue an air quality permit, the Texas Clean Air Act requires the Texas Commission on Environmental Quality (TCEQ) to consider possible adverse effects on those attending any school within 3,000 feet of the facility. After TCEQ issued a permit, those opposing the permit appealed TCEQ’s decision. They claimed TCEQ did not specifically consider […]

Written by on August 22, 2022

Court Refuses to Allow Downgradient Landowners to Challenge CERCLA Settlement

The parties to a case brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) regarding the Reilly Tar CERCLA Site (the “Site”) reached a settlement in 2019, amending a 1986 settlement. Two companies that own property downgradient of the Site asked to be allowed to intervene in the case to challenge the 2019 […]

Written by on August 15, 2022

Highlights from the 2022 Texas Environmental SuperConference

I enjoyed the 2022 Texas Environmental SuperConference in Austin, Texas last week. Many thanks to the planners and presenters. Listed below are a few items I found of interest. Virtual SOAH Hearings Will Continue The State Office of Administrative Hearings (SOAH) handles administrative permitting and enforcement matters for over 50 Texas agencies. Due to the […]

Written by on August 8, 2022

DOJ Announces Environmental Justice Investigation of the City of Houston

On July 22, 2022, the US Department of Justice (DOJ) announced the initiation of an environmental justice investigation into the practices of the City of Houston relating to illegal dumping. According to DOJ’s news release: “The investigation will examine whether the City’s enforcement and solid waste management operations, policies and practices in response to illegal […]

Written by on August 1, 2022

Groups Petition EPA to Review TCEQ’s Air Permitting Program

On June 28, 2022, thirteen environmental groups filed a Petition with EPA requesting compliance review of the air permitting program of the Texas Commission on Environmental Quality (TCEQ) under Title VI of the Civil Rights Act.  The Petition states EPA must make changes to the Texas SIP (State Implementation Plan). Alleged Deficiencies in Public Participation […]

Written by on July 25, 2022

RCRA Settlement Requires $84 Million in Financial Assurance

EPA and the State of Louisiana alleged a company violated the Resource Conservation and Recovery Act (RCRA) by failing to properly identify and manage certain waste streams as hazardous waste. According to a US Department of Justice (DOJ) news release announcing the settlement, the company agreed to a civil penalty of $1.5 million; it also […]

Written by on July 18, 2022