Category: Environmental Alerts

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

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