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Showing 148 posts in Texas.

Texas Jury Declines to Award Damages in $10B Toxic Flaring Case

In the first test case in a series of actions involving about 48,000 plaintiffs, a Texas jury declined to award damages in an action against Defendant BP Products North America’s Texas City Refinery, despite finding that the refinery had negligently flared approximately 500,000 pounds of noxious chemicals. See In re: MDL Litig. regarding Texas City Refinery Ultracracker Emission, No. 10-UC-0001 (56th Jud. Dist. Tex. Oct. 10, 2013) Read More ›

TCEQ Releases Draft Rules for Taking Over Texas Greenhouse Gas Permitting from EPA Region 6

The Texas Commission on Environmental Quality (TCEQ) has released draft rules to transition prevention of significant deterioration (PSD) greenhouse gas (GHG) permitting from EPA Region 6 to TCEQ, and to address Title V permitting for GHG-related requirements. The draft rules would set up a state permitting program based on the current federal requirements: establishing under Texas law that GHGs are a federally regulated new source review pollutant, defining how carbon dioxide equivalent (CO2e) emission are determined, and imposing parallel threshold levels. The draft rules are scheduled to be considered for proposal by the TCEQ commissioners on October 23, 2013. Read More ›

Houston Air Ordinance Upheld by Texas Appeals Court

The Texas First Court of Appeals issued an opinion on August 29, 2013 holding that two Houston city air quality ordinances were not preempted by the Texas Clean Air Act ("TCAA"). City of Houston v. BCCA Appeal Group, Inc. (No. 01-11-00332-CV). The ordinances established a City air quality program that included a fee schedule and expanded the program’s scope to cover emission sources subject to TCEQ regulation. Reversing the trial court, the Court of Appeals found that the TCAA did not preempt Houston’s authority and that the ordinance registration and fee provisions were legal because they operated a concurrently with existing state requirements. The Court also held that because the ordinances only incorporated parts of the TCAA, and did not include TCEQ discretionary enforcement powers, they did not circumvent the express goals of the Legislature to render them invalid.  The court’s opinion is available here.

Proposal to Remove Port Arthur from Air Pollution Watch List

On August 28, 2013, the Texas Commission on Environmental Quality (“TCEQ”) proposed to remove Port Arthur from the agency’s Air Pollution Watch List (“APWL”) based on reductions in measured benzene levels in recent years.  TCEQ added Port Arthur to the APWL in 2001 to address elevated annual average benzene concentrations at the agency’s City Service Center monitor.  Since that time sources in the Port Arthur APWL area implemented operational improvements that have achieved lower benzene emissions.  TCEQ will host a public meeting regarding the proposal in Port Arthur on October 8, 2013, and is accepting public comment through October 11, 2013. 

Additional information regarding this proposal, including information on the public meeting and how to submit comments, is available on TCEQ’s website.  

Texas SIP Update


On September 26, 2013, the U.S. Environmental Protection Agency (“EPA”) published a final rule disapproving portions of state implementation plan (“SIP”) revisions relating to the Texas Emergency Orders Program that Texas submitted on August 31, 1993, December 10, 1998, February 1, 2006, and July 17, 2006 (78 Fed. Reg. 59250).  EPA found that Texas’ proposed Emergency Orders Program failed to meet Clean Air Act requirements for projects subject to major new source review (“NSR”) by not meeting major NSR public participation requirements and the requirement that an NSR permit be issued prior to commencement of construction of a major source. 

Read More ›

Upcoming TCEQ Meetings & Events

  • TCEQ’s 2013 Water Quality/Stormwater Seminar will be held on October 3-4, 2013 in Austin.  Along with other information, this event will provide updates on existing and upcoming rules; technical information regarding municipal, industrial, stormwater, and sludge permits; design criteria for domestic treatment facilities and collection systems; industrial and municipal effluent reuse; and water quality standards development and implementation. Additional information about this seminar is available on TCEQ’s website.
  • The Zero Waste Network’s 2013 Pollution Prevention and Lean Principles Workshops will be held in Arlington (October 1-3, 2013), and Houston (November 5-7, 2013). The workshops will be conducted in partnership with the TCEQ, with instructors from both entities. The course will be based on the Texas Waste Reduction Policy Act which requires Pollution Prevention ("P2") planning for certain facility types. Additional information about these three-day workshops is available on Zero Waste Network’s website.
  • TCEQ’s Industrial Emissions Inventory Workshop will be held on January 23, 2014 in Austin. This workshop will focus on updates to the 2013 point source emissions inventory and provide a demonstration on submitting an emissions inventory update through the TCEQ’s web-based reporting system. Additional Information is available on TCEQ’s website.

TCEQ Releases Additional Final Draft Modules for Flare Training

TCEQ, together with the University of Texas, has unveiled the fourth and fifth training modules for flare operations.  According to the TCEQ website, the objective of the training is "to enhance plant personnel understanding of industrial flare operation and provide practical information about variables affecting flare performance, with the aim to maximize flare destruction and removal efficiency (DRE) of dual-purpose assisted flares consistent with state and federal rules using existing on-site resources."  The training consists of five modules and an assessment, as follows:

  • Module 1 - Introduction
  • Module 2 - History of Flares, Applicable Regulatory Codes and Flare Types 
  • Module 3 - Approaches to Monitoring Flare Emission Performance 
  • Module 4 - Flare Performance Parameters Investigated in Recent Industrial Flare Studies 
  • Module 5 - Factors that Impact Flare Performance 

The training Modules are available at http://sfot.ceer.utexas.edu/sfotmoodle/

Texas Audit Policy Act Guidance Updated

TCEQ has revised its Guide to the Texas Environmental, Health, and Safety Audit Privilege Act (the "Act") to reflect changes made during the 2013 Legislative Session. The changes from the 83rd Legislative Session were designed to enhance applicability of the Act in pre-acquisition contexts. Specifically, pre-acquisition audits are exempt from both the requirements for advanced notice and the six-month time-frame for completion. The Guide incorporates these legislative changes but notes that they are not otherwise expected to "significantly affect the way the TCEQ has been implementing the Audit Act since 1995." See Guide at 3. The new Guide provides model letters for pre-acquisition audits. Exhibit G. A copy of the new guidance is available at http://www.tceq.texas.gov/publications/rg/rg-173.html.

Fifth Circuit Denies Review of EPA Title V Permit Objections

The Fifth Circuit denied review for lack of subject matter jurisdiction of EPA objections to three Title V Permits issued by the Louisiana Department of Environmental Quality ("LDEQ") to Nucor Steel Louisiana for an iron manufacturing facility. See Louisiana Dep’t Env’l Quality v. U.S. Env’l Protection Agency, Case No. 12-60482, Slip Op. Fifth Cir. Sept. 13, 2013. LDEQ brought suit challenging the objections, issued almost two years after the State had issued the permits. Rejecting arguments that EPA’s objections were not proper "objections" and were untimely made, the Court held that Clean Air Act Section 7661d(c) does not allow judicial review of an objection and is not final Agency action. In dicta, the Court pointed to other provisions of the Act (citizen suit provisions) as potential mechanisms for challenging an EPA objection.

Texas Court Of Appeals Finds Compensable Regulatory Taking Of Groundwater

On August 28, 2013, the Texas Fourth Court of Appeals held that groundwater permit restrictions imposed by the Edwards Aquifer Authority (the "Authority") on landowners constituted a regulatory taking. The landowners, Glenn and JoLynn Bragg, were commercial pecan growers who brought suit against the Authority after they were denied a water permit for one of their pecan orchards, and granted a limited permit for another orchard. Read More ›