Category: Environmental Alerts

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

Multi-Million Dollar Permitting Mistake in Furnace Rebuild Project

A company applied to the state air permitting agency to authorize rebuilding of two furnaces. In the application, the company said the rebuild involved physical changes that would not lead to significantly increased emissions. PSD Regulations for Increased Emissions After construction, EPA concluded the rebuilt furnaces increased emissions of particulate matter by significant amounts, triggering […]

Written by on July 11, 2022

Supreme Court Decision Consistent with a Structure that Resists Rapid Change

The US Supreme Court’s decision declaring EPA lacked the power to promulgate the Clean Power Plan (CPP) issued during the Obama administration demonstrates the resistance to rapid change in the structure of the federal government. In West Virginia v. EPA, issued June 30, 2022, the Court invoked the “major questions doctrine.” The Court determined EPA […]

Written by on July 5, 2022

Texas Supreme Court to Hear Toxic Tort Case

The Supreme Court of Texas agreed to hear a case alleging that “herbicide drift” from aerial spraying damaged 111 cotton fields. The trial court had struck the farmers’ causation experts and dismissed the case based on the pre-trial motion of the herbicide’s distributor. On appeal, an intermediate appellate court ruled the trial court should not […]

Written by on June 27, 2022

DOJ Announces Settlement of Alleged Flare Violations

The US Department of Justice (DOJ) announced it has settled allegations that five related companies improperly operated flares at three manufacturing facilities. According to DOJ’s news release announcing the settlement, the companies “agreed to make upgrades and perform compliance measures estimated to cost $110 million to resolve allegations that they violated the Clean Air Act […]

Written by on June 21, 2022

Texas Supreme Court Clarifies Pipeline Condemnation Issues

The Texas Supreme Court provided guidance on how pipeline companies can establish their authority to condemn property. The company must show the pipeline will carry a product identified in one of two Texas statutes and that the pipeline will serve at least one customer unaffiliated with the pipeline company. Independent Statutes Texas law gives “common […]

Written by on June 6, 2022

Company Pleads Guilty in Power Plant Deaths

A company pleaded guilty to willfully violating an Occupational Safety and Health Administration (OSHA) rule in the deaths of five workers at a power plant. According to the US Department of Justice (DOJ) news release, the company used a contractor to perform high pressure water blasting in an attempt to clear a slag accumulation. Several […]

Written by on May 31, 2022

Potential Ramifications of 5th Circuit SEC Decision

The Securities and Exchange Commission (SEC) brought an enforcement action claiming a hedge fund and its founder violated the securities laws. SEC 1) ordered almost a million dollars in penalties and disgorgement and 2) barred the fund’s founder from various securities industry activities. On appeal, the US Court of Appeals for the 5th Circuit vacated […]

Written by on May 23, 2022

Court Rules US Forest Service Exceeded Authority in Mining Permit

The US Forest Service (USFS) approved a mining plan of operations (MPO) that called for digging a pit over a mile wide and using 2,447 acres for a disposal area, all within a National Forest. In a suit challenging approval of the MPO, opponents alleged USFS exceeded its authority. Company Lacked Mining Claims to the Disposal […]

Written by on May 16, 2022

DOJ Announces Comprehensive Environmental Justice Strategy

In a May 5 news release, the US Department of Justice (DOJ) announced the launching of a “comprehensive environmental justice strategy” and also announced issuance of “an Interim Final Rule that will restore the use of supplemental environmental projects in appropriate circumstances.” DOJ Environmental Justice Memorandum On the same day, Associate Attorney General Vanita Gupta […]

Written by on May 9, 2022

Federal Appeals Court Allows CWA Citizen Suit to Proceed Despite State Agency Order

In response to a citizen’s suit under the Clean Water Act (CWA), the defendants obtained dismissal from the district (trial level) court, because the state agency had issued an administrative order for the same violations. In Blackstone Headwaters Coalition v. Gallo Builders, the1st Circuit issued an en banc opinion that the citizen’s suit could proceed […]

Written by on May 2, 2022

DOJ Releases FY 2021 Accomplishments Report

On April 22, 2022, the US Department of Justice (DOJ) released its “Accomplishments Report for Fiscal Year (FY) 2021.” An accompanying DOJ news release quoted Assistant Attorney General Todd Kim of DOJ’s Environment and Natural Resources Division (ENRD), who said, “ENRD has an incredibly important mission to protect public health and welfare by enforcing the […]

Written by on April 25, 2022

Court Finds Status of Decision on Dam Removal Was Adequate to Allow Suit

A wind energy company pleaded guilty to three counts of violating the Migratory Bird Treaty Act (MBTA). According to the news release from the US Department of Justice (DOJ), the company “acknowledged that at least 150 bald and golden eagles have died in total since 2012, across 50 of its 154 wind energy facilities. 136 […]

Written by on April 18, 2022

Wind Energy Company Pleads Guilty for Eagle Deaths

A wind energy company pleaded guilty to three counts of violating the Migratory Bird Treaty Act (MBTA). According to the news release from the US Department of Justice (DOJ), the company “acknowledged that at least 150 bald and golden eagles have died in total since 2012, across 50 of its 154 wind energy facilities. 136 […]

Written by on April 11, 2022

EPA Releases Strategic Plan

On March 28, 2022, EPA released its Fiscal Year (FY) 2022-2026 Strategic Plan. According to the accompanying news release, the Strategic Plan “provides a roadmap to achieve EPA’s and the Biden-Harris Administration’s environmental priorities over the next four years.” According to its Overview, the Strategic Plan adds the foundational principle to “advance justice and equity” […]

Written by on April 4, 2022

New Memorandum regarding Settlements of Environmental Claims Against EPA

On March 18, 2022, EPA Administrator Reagan issued “Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency,” a memorandum revoking a 2017 memorandum and accompanying directive issued during the Trump administration. Claims of Improper EPA Policymaking through Settlements The Trump-era documents were a response to concerns that EPA made improper policy decisions […]

Written by on March 28, 2022

Flare Issues Lead to Multi-Million Dollar Settlement

A chemical company agreed to pay a $3.4 million civil penalty and spend an estimated $118 million in compliance measures at three Texas facilities to settle allegations that its flare operations had violated the Clean Air Act. Improper Flare Operation According to the news release issued by the US Department of Justice (DOJ), “the company […]

Written by on March 14, 2022

Alleged Injury to Aesthetic Interests Can Satisfy Standing Requirement

An environmental group filed a Clean Water Act citizen suit, alleging a company did not comply with the permitting process before filling a half-acre of wetlands. Group Must Adequately Plead an Injury in Fact to Establish Standing Among the requirements to establish standing to sue, the group had to allege one of its members suffered […]

Written by on March 7, 2022

Class Action Can Proceed Alleging Management Hid Environmental Liabilities

A federal district (trial level) court recently ruled that an investors’ class action lawsuit can proceed. The investors allege management knowingly understated the publicly held company’s environmental liabilities. Class Action Complaint Met Pleading Requirements Federal law requires security fraud claims be pleaded with some specificity. The company argued the allegations in the investors’ complaint did […]

Written by on February 28, 2022

Power Plant Emissions Increased in 2021

In a February 18, 2022 news release, EPA acknowledged that emissions from power plants increased in 2021 from 2020 levels. EPA attributed the increase to “a rebound in coal-fired generation as natural gas prices and energy demand increased.” Compared to 2020, NOx emissions increased 6%, SO2 increased 20%, CO2 increased 7%, and mercury increased 13%. […]

Written by on February 22, 2022

EPA Enforcement Filings Continue Downward Trends

On January 20, 2022, EPA announced its Enforcement and Compliance Accomplishments for fiscal year (FY) 2021. EPA’s news release highlighted an increase in the economic value of commitments companies have made to achieve environmental compliance as a result of enforcement and an increase in the amount assessed in penalties. Fewer Civil Cases Since 2011 In […]

Written by on February 14, 2022

Circuit Court Says Pipeline’s Endangered Species Review Was Inadequate

The U.S. Court of Appeals for the Fourth Circuit vacated the Biological Opinion of the U.S. Fish and Wildlife Service (FWS) for the Mountain Valley Pipeline Project, finding FWS failed to adequately consider the project’s impacts on two endangered species of fish. The Federal Energy Regulatory Commission (FERC) authorized the project, a pipeline proposed for […]

Written by on February 7, 2022

EPA Announces Environmental Justice Actions

On January 26, EPA issued a news release relating to environmental justice, indicating EPA was implementing a series of broad policy actions to address environmental justice concerns and taking specific steps for several local communities recently visited by Administrator Reagan. Inspections, Air Monitoring, and Ethylene Oxide The broad policy initiatives will include aggressive use of […]

Written by on January 31, 2022

US Supreme Court Accepts another WOTUS Case

In a move likely to end the ongoing struggle with the definition of “waters of the United States” (WOTUS) as the term relates to ephemeral streams, which have flow for just a short time, the US Supreme Court has agreed to hear a case on that issue. On January 24, 2022, the Court accepted the […]

Written by on January 27, 2022

Environmental Groups Challenge EPA’s PFAS Rules

Earthjustice, on behalf of three environmental groups, filed suit challenging two EPA rules relating to reporting requirements for per-and polyfluoroalkyl substances (PFAS). The rules, issued in 2020 and 2021, establish de minimis concentration exemptions and alternate threshold exemptions for reporting PFAS to EPA for the Toxics Release Inventory (TRI). Suit Seeks to Increase Reporting and […]

Written by on January 24, 2022

Judge Rejects States’ Request to Resurrect Keystone Pipeline Project

A Texas federal district (trial level) court judge dismissed a suit brought by Texas and 22 other states challenging the validity of President Biden’s revocation of the permit for the Keystone Pipeline. In dismissing the case, the judge held that the case was moot because “Keystone XL is dead.” No Jurisdiction If Case Is Moot […]

Written by on January 10, 2022

EPA Issues Report on Seasonal Effects of Climate Change

On December 21, 2021, EPA issued “Seasonality and Climate Change: A review of observed evidence in the United States.” The peer-reviewed report summarizes observed changes related to seasonality in the United States. It discusses how climate change affects the timing and nature of seasonal events and describes some of the implications of those changes. The […]

Written by on January 3, 2022

EPA Announces New Regional Administrator for Region 6

EPA has announced that Dr. Earthea Nance will be the new Regional Administrator for Region 6, which covers Arkansas, Louisiana, Oklahoma, New Mexico, and Texas. Dr. Nance holds civil engineering degrees from the University of California-Davis and a Ph.D. in environmental engineering from Stanford University. She has been a registered professional engineer for 25 years […]

Written by on December 20, 2021

Barge Company to Pay $15 Million for Injuries to Natural Resources

A barge company has agreed to pay $15 million in damages and assessment costs to resolve claims for injuries to natural resources under the Oil Pollution Act. According to the Complaint filed by the United States and the State of Texas, a towboat owned by the company, operating in fog, attempted to cross the Houston […]

Written by on December 6, 2021

TC Energy Submits Request for NAFTA Arbitration regarding Keystone XL Pipeline

On Monday, November 22, 2021, TC Energy submitted a formal Request for Arbitration of a legacy North American Free Trade Agreement (NAFTA) claim under the United States-Mexico-Canada Agreement. TC Energy seeks economic damages resulting from the revocation of the Keystone XL Project’s Presidential Permit. In July, TC Energy began the process by filing a Notice of Intent to […]

Written by on November 29, 2021

DOJ Announces New Actions to Respond to Corporate Crime

On October 28, 2021, Deputy Attorney General Lisa Monaco announced in a speech to the American Bar Association’s National Institute on White Collar Crime “new actions that the department is taking today to strengthen the way we respond to corporate crime.” Overly Cautious DOJ In her speech, she criticized past efforts as being overly cautious […]

Written by on November 15, 2021

ALERT: Environmental EPA Proposes Rules to Reduce Methane Emissions

On November 2, 2021, EPA announced it is proposing new rules designed to reduce emissions of methane and other pollutants from oil and gas operations. New Monitoring to Detect Leaks According to the Fact Sheet summarizing the proposal, the new rules will require “a comprehensive monitoring program to require companies to find and fix leaks […]

Written by on November 8, 2021

Definition of “Habitat” Is Endangered

On October 27, 2021, the US Fish & Wildlife Service and the National Marine Fisheries Service (the Services) announced their intention to rescind the rule defining “habitat,” which had become effective earlier this year. If rescinded, the federal government will again be issuing rules and taking enforcement actions aimed at protecting habitat under the Endangered […]

Written by on November 1, 2021

EPA Announces PFAS Comprehensive National Strategy

On October 18, 2021, EPA issued a news release of Administrator Reagan’s announcement of a “comprehensive Strategic Roadmap” to confront per-and polyfluoroalkyl substances (PFAS) contamination. According to the news release, the Roadmap has three guiding strategies: 1) increase investments in research, 2) leverage authorities to restrict PFAS chemicals from being released into the environment, and […]

Written by on October 25, 2021

Flare Issues Lead to $3.4 Million Penalty

Due to alleged flare issues at six of its facilities, a petrochemical company has agreed to pay a $3.4 million civil penalty and to spend an estimated $50 million in upgrades and performance testing, according to a news release issued by the US Department of Justice (DOJ). Failure to Combust VOCs According to DOJ, the […]

Written by on October 18, 2021

West Texas Gas Companies to Pay $3 Million to Settle Clean Air Act Case

The US Department of Justice (DOJ) announced that five subsidiaries of West Texas Gas, Inc. (WTG) will pay more than $3 million in civil penalties “to resolve claims stemming from fatal chemical accidents and accident prevention program violations.”  They also agreed to spend up to $5 million on compliance measures. Fatalities from a 2015 Fire […]

Written by on October 4, 2021

EPA Rescinds Guidance on Permitting Discharges through Groundwater

On September 16, 2021, EPA rescinded the Trump administration’s guidance for determining when a discharge through groundwater requires a permit.  Going forward, “EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires a permit under the Clean Water Act.” Supreme […]

Written by on September 27, 2021

Texas Facility to Pay Millions to Settle Clean Air Act Case

The US Department of Justice (DOJ) announced that Formosa Plastics Corporation, Texas will pay $2.85 million in civil penalties to resolve allegations its facility in Point Comfort, Texas violated the Clean Air Act (CAA).  Formosa has also agreed to upgrade its risk management program (RMP), with an estimated cost of at least $1.4 million. Fires, […]

Written by on September 20, 2021

Appeals Court Reverses CERCLA Decision Finding Harm Capable of Apportionment

In Von Duprin v. Major Holdings, the US Court of Appeals for the 7th Circuit observed “joint and several liability often reflects the norm in complex environmental cleanup cases because most circumstances reveal numerous disposers of waste over long periods of time where after-the-fact identification of who contributed what and thus who caused what portion […]

Written by on September 13, 2021

A New WOTUS Definition-the Administration’s Dilemma

In June, the Biden administration announced it will revise the definition of “waters of the United States” (WOTUS) (See  Administration Announces Intent to Revise Definition of WOTUS).  In July, the administration announced the Army and EPA will issue a “foundational rule” that will withdraw the WOTUS definition in the Navigable Waters Protection Rule issued during the […]

Written by on September 7, 2021

TCEQ Renews Stormwater MSGP for Industrial Facilities

Effective August 14, 2021, the Texas Commission on Environmental Quality (TCEQ) has issued the new 2021 Multi-Sector General Permit (MSGP) for industrial facilities. Renewals Due by November 12, 2021 Existing permittees have until November 12, 2021 to renew their existing authorizations by submitting a renewal Notice of Intent (NOI) or No Exposure Certification (NEC), as […]

Written by on August 23, 2021

Energy Company Pays $1 Million to Settle Clean Water Act Case

An energy company has agreed to pay $1 million to settle Clean Water Act allegations related to two tank batteries that support oil and gas production. In 2014, one of the batteries discharged over 7,000 gallons of condensate and produced water.  At both facilities, which were in Colorado floodplains, investigations found them deficient in Spill […]

Written by on August 16, 2021

Texas Appellate Court Upholds Permanent Closure of Recurring Nuisance

An intermediate Texas court, the 12th Court of Appeals in Tyler, Texas, affirmed a Henderson County, Texas District (trial level) Court’s injunction that ordered the permanent closure of a chicken farm.  The District Court’s injunction ordered the owners and operators of the farm and the company that provided the chickens to close the farm and […]

Written by on August 9, 2021

EPA Announces Several Enforcement Settlements for Filing and Pollution Prevention Deficiencies

In news releases dated July 20 through July 22 and posted on EPA’s website are five announcements of enforcement settlements with private entities. Lack of Pollution Does Not Prevent Penalties Common to all announcements: EPA did not allege an actual release of pollution beyond facility boundaries. Alleged deficiencies were operating facilities with inadequate pollution prevention, […]

Written by on July 26, 2021

Key WOTUS Issue: Ephemeral Streams

A significant effect of the definition of “waters of the United States” (WOTUS) in the Navigable Waters Protection Rule (NWPR) issued by the Trump administration is eliminating federal jurisdiction over ephemeral streams. Surface Water in Direct Response to Precipitation The Code of Federal Regulations defines “ephemeral” as “surface water flowing or pooling only in direct […]

Written by on July 19, 2021

US Supreme Court Says Pipelines Can Condemn State Property

The US Supreme Court held the Natural Gas Act (NGA) allows private pipeline companies to condemn state property to secure routes for their pipelines.  In PennEast Pipleline v. New Jersey, the Court said the 3rd Circuit Court of Appeals was wrong in concluding the NGA did not give private pipelines the power to use eminent […]

Written by on July 6, 2021

EPA Assesses Penalties for Inadequate Protective Measures

Two recent cases serve as a reminder that companies face enforcement action, including significant penalties, even when they have no illegal discharges or emissions. Companies are expected to comply with EPA’s rules regarding structures and plans in place to protect from catastrophic events.  When EPA inspections show required measures are not in place, expect enforcement. […]

Written by on June 28, 2021

Administration Announces Intent to Revise Definition of WOTUS

In a June 9, 2021 news release, EPA and the Army announced their intent to revise the regulatory definition of “waters of the United States” (WOTUS) “to better protect our nation’s vital resources.” Claims of Harm from Existing Rule The Navigable Waters Protection Rule, promulgated in 2020 under President Trump, was one of several administrative […]

Written by on June 21, 2021

TC Energy and Alberta Announce Termination of Keystone XL Pipeline

TC Energy and Alberta Announce Termination of Keystone XL Pipeline TC Energy Corporation and the Government of Alberta announced termination of the Keystone XL Pipeline Project. President Biden Revoked Permit In its news release, TC Energy said construction activities were suspended after President Biden revoked the project’s Presidential Permit on January 21, 2021.  On June […]

Written by on June 14, 2021

EPA Report Shows Fifty Years of Declining Pollution and Economic Growth

On May 26, 2021, EPA released a report on long-term air pollution and economic trends, “Our Nation’s Air: Trends Through 2020.”  According to EPA’s news release, the Report “documents the work EPA and its state, Tribal, community, and industry partners have done to achieve improvements in outdoor air quality across the country.” Decreases in Key […]

Written by on June 7, 2021

EPA Inspector General Issues Report on Declining Enforcement

On May 13, 2021, EPA’s Office of Inspector General issued “Resource Constraints, Leadership Decisions, and Workforce Culture Led to a Decline in Federal Enforcement.”  The Report is the result of an audit of EPA’s enforcement trends for fiscal years 2006 through 2018, years that included all or part of the Bush, Obama, and Trump administrations. […]

Written by on June 1, 2021

Texas Supreme Court Upholds Privilege for Notice Letters in Citizen Suits

  The Endangered Species Act (ESA), like many environmental statutes, allows for citizen suits but requires Notice Letters be sent to the alleged violator and the government.  The Notice Letter requirement provides the government an opportunity to review the allegations and determine if the government should bring enforcement.  If after 60 days the government does […]

Written by on May 24, 2021

Preference Will Continue for Stories over Statistics in EPA Enforcement

  Alerts about enforcement trends during the Trump administration identified ongoing budget constraints that reduced the number of EPA enforcement cases. Indeed, this trend began during the Obama administration and is largely dependent on funding, not on the party of the administration.  However, the Trump EPA did not appear to regret the decrease in enforcement […]

Written by on May 17, 2021

Companies and Individuals Hit with $2 Million Penalty in Clean Water Act Citizen Suit

Californians for Alternatives to Toxics (CAT) brought a citizen suit against Kernen Construction, Bedrock Investments, Scott Farley, and Kurt Kernen (Defendants) for violations of the Clean Water Act (CWA), which allows private citizens to sue CWA violators for penalties (payable into the US Treasury), injunctive relief, and attorneys’ fees. Thousands of Violations Acknowledged Defendants admitted […]

Written by on May 10, 2021

Texas Law May Be Inconsistent in Determining Employee Status

While employed by a temporary staffing agency, Stevenson worked on assignment for Waste Management.  After being injured on the job, Stevenson collected worker’s compensation through the temporary staffing agency and then sued Waste Management, saying its negligence caused the injury, which was not fully compensated by worker’s compensation. Worker Cannot Sue the Employer In Waste […]

Written by on May 3, 2021

DOJ and EPA Announce Environmental Crime Victim Assistance Program

In a speech made April 20, 2021, Acting Assistant Attorney General Matthew Colangelo announced the US Department of Justice (DOJ) and EPA had jointly created “the nation’s first-of-its-kind Environmental Crime Victim Assistance Program.” More Involvement of Victims The goal of the program is to “help ensure that victims of federal environmental crimes are properly identified, […]

Written by on April 26, 2021

Texas Supreme Court Allows Harvey Claims to Proceed

To protect a dam, the San Jacinto River Authority (River Authority), released a large amount of water during Hurricane Harvey. In doing so, the River Authority, a governmental entity, acknowledged the release would cause “devasting flooding downstream” but asserted it did not have the option to stop the release. Landowners Claim River Authority Action Was […]

Written by on April 19, 2021

EPA Issues Environmental Justice Announcement

On April 7, 2021, EPA issued a news release announcing Administrator Regan’s environmental justice directive.  All EPA offices shall “clearly integrate environmental justice considerations into their plans and actions.” According to the news release, “communities whose residents are predominantly of color, Indigenous, or low-income continue to suffer from disproportionately high pollution levels and the resulting […]

Written by on April 12, 2021

EPA Highlights Spill Prevention Requirements in Announcing CWA Settlement

“All facilities with 1320 gallons of oil that have the potential for a spill to reach waters of the United States are required to have an SPCC plan.” This is a statement EPA included in its news release announcing settlement with Merit Energy regarding a Clean Water Act (CWA) enforcement matter.  The reference to “SPCC” […]

Written by on April 5, 2021

Chesapeake Pays $1.9 Million to Settle Wetlands Enforcement

In 2014, Chesapeake Appalachia LLC informed EPA, the US Army Corps of Engineers (USACE), and the Pennsylvania Department of Environmental Protection (PDEP) that an internal audit had identified potential unauthorized discharges of fill material without applicable permits at multiple sites in Pennsylvania.  Eventually, Chesapeake disclosed potential unauthorized discharges at a total of 76 sites across […]

Written by on March 29, 2021

SEC Seeks Public Input on Climate Change Disclosure

On March 15, 2021, the US Securities and Exchange Commission (SEC) issued a Public Statement requesting “public input” from “investors, registrants, and other market participants on climate change disclosure.” SEC’s Ongoing Evaluation of Climate Change Disclosure According to the Public Statement, SEC’s 2010 Climate Change Guidance indicated “information about climate change related risks and opportunities […]

Written by on March 22, 2021

Lessons from an Oilfield Tragedy

In 2014, a tanker trailer containing waste from oil wells exploded during welding, killing the welder.  The tank had not been properly cleaned prior to welding, nor had the welder been properly trained or supervised, according to the US Department of Justice (DOJ) news release on the guilty plea entered by the welder’s employer. Cover-up […]

Written by on March 15, 2021

Ninth Circuit Clarifies What Government Must Prove in Wetlands Criminal Case

James Lucero dumped dirt and debris onto land near the San Francisco Bay.  The federal government brought criminal charges under the Clean Water Act, alleging Lucero knowingly discharged pollution into wetlands, which constitute “waters of the United States.”  In US v Lucero, the US Court of Appeals for the 9th Circuit reversed the conviction and […]

Written by on March 8, 2021