Law and the Environment

Channel 11 Interview on West, Texas Explosion and Federal and State Statutes Regarding Ammonium Nitrate

I was interviewed by Jack Fink, a reporter at Channel 11 in Dallas, Texas to discuss the legal issues relating to applicable federal and state statutes that may relate to any reporting or approval for storage of ammonium nitrate.  The interview took place on April 30, 2013.  We discussed more detail, but the quote during the news cast focused on the potential for criminal prosecution, particularly where there are knowing acts to put people in danger of death or serious injury.  This is known as the "knowing endangerment" provision that is contained in some of the federal and state environmental statutes.

Some of the federal statutes that may apply to the West, Texas facility and the storage of ammonium nitrate include, the Chemical Facility Anti-Terrorism Standards Act, which is administered by the Department of Homeland Security, the Emergency Planning and Community Right to Know Act, administered by the EPA, and the federal Clean Air Act, administered by the EPA and delegated in part to certain states.  The Clean Air Act requirements that may apply would be the Risk Management Plan requirement.

The applicability of these statutes to storage of ammonium nitrate, reporting, and other requirements depends on the statute and regulations issued under those statutes, as well as the specific facts of any case.

 

 

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In Cases Like West, Texas, Actions Companies Can Take to Defend against Lawsuits and Government Prosecutions

With an explosion such as the one in West, Texas companies have to begin their defense almost immediately.  We all mourn the loss of the people in West, Texas, and the first responders who lost their lives in trying to put out the fire.  Unfortunately, companies who have explosions or chemical spills or other environmental events, while being compassionate about any dead or injured, are immediately the target of potential lawsuits and governmental prosecutions.  As government investigators start their work, plaintiff's law firms begin working with clients and developing their strategy for bringing lawsuits against companies.

An article in the Texas Lawbook entitled West Fertilizer Explosion Lawsuits Coming discusses how several plaintiff's firms are already working on the case.  I was quoted in that article as follows:

Scott Deatherage, a partner at Gardere Wynne Sewell, says the state and federal government investigations could dictate the direction of the civil lawsuits, especially if the reports fault the company.

 “Companies need to conduct their own internal investigations through their own counsel to try to ensure the reports and conclusions of the investigating agencies are factually accurate and respond appropriately to allegations regarding statutory or regulatory violations,” says Deatherage.

It is true that companies must defend themselves in these cases, and need to understand the interplay between investigating agencies and plaintiff’s attorneys.  The government investigations and statutes and regulations are important to understand and how they may affect claims by injured workers and bystanders.  These reports can serve the interests of the plaintiffs and their attorneys.

An internal investigation under an attorney's direction to determine the causes and facts will go a long way in understanding the nature of the case and how to defend against claims by the government and individual citizens.  It is unfortunate, but companies must begin this work right at the time of the event, in order to respond to the claims that may be inevitable as the result of the series of facts that lead to the explosion, spill, or other catastrophic event.

 

 

 

The Amazingly Large Number of Environmental Permits Companies May Need to Obtain in Texas

In a conversation with one of our attorneys in our Austin office, the subject of the types of permits or authorizations that a business may be requried to obtain in the State of Texas.  I sat down and drafted a list of those that I have worked on over the last 25 years of practicing environmental law in Texas.  My practice has involved projects and issues in states all across the country, but I decided to focus on those that state or federal agnencies issue in Texas.  In part this is because we were discussing agencies in Austin that I have worked with to obtain permits for clients.

The list is fairly long.  One must keep in mind that Texas is one of the largest states in terms of land mass, population, and industry.  We have one of the largest concentrations of oil and gas exploration and production, pipelines, terminals, chemical plants, petrochemical plants, oil refineries, manufacturing, mining, electrical power production, and many other industries and businesses that are regulated under federal and state environmental laws.  Thus, Texas has some of the largest and most sophisticated environmental agencies.  These agencies include the Texas Commission on Environmental Quality, the Railroad Commission of Texas (which despite its name regulates oil and gas), the Texas  Department of State Heath Services (which regulates radioactive materials and permits), and the Texas Parks and Wildlife Department.  Groundwater well permits may be necessary to drill a water well in counties with groundwater conseration districts.  Surface water use requires a permit from the TCEQ.  The Public Utility Commission would receive the power to regualte water rates under proposed legislation, moving this power from the TCEQ.

The TCEQ is the second largest environmental agency next to the US EPA.

So I thought I would provide the list.  Readers, let me know what I may have left out!

1. Types of Permits: 

1.  
   1. Air                                                                                                                                                                                                                                   i.      New Source Review,

                                                            ii.      Prevention of Significant Deterioration,

                                                          iii.      Title V,

                                                          iv.      Acid Rain,

                                                            v.      Standard Permits

                                                          vi.      Permits by Rule

1.  
   1. Wastewater and Water

                                                              i.      NPDES

                                                            ii.      Storm Water

                                                          iii.      Wetlands

                                                          iv.      Water Use and Supply

1.      Surface Water—permitting with the TCEQ

2.      Groundwater—Groundwater Conservation Districts and Well Permitting

3.      Public Water Supply Utility

1.  
   1. Solid and Hazardous Waste, including the Texas Solid Waste Disposal Act, the federal Resource Conservation and Recovery Act

                                                              i.      Solid Waste

                                                            ii.      Hazardous Waste

                                                          iii.      Oil and Gas Waste

                                                          iv.      Exemptions and Exclusions

                                                            v.      Wastewater Treatment Land Farming

                                                          vi.      Injection Wells

1.  
   1. Radioactive Material

                                                              i.      Radioactive Materials Licensing

                                                            ii.      Uranium Mining

1.  
   1. Species and Habitat

                                                              i.      Endangered Species Incidental Take Permit and Section 7 Consultation

                                                            ii.      Migratory Birds

                                                          iii.      These may arise on their own or may arise in federal and state permitting for other programs

1.  
   1. Historical and Cultural Resources

                                                              i.      Federal and State programs, which typically arise in federal and state permitting for other programs

 

1. Facility and Industry Types
   1. Natural gas-fired power plant,
   2. Chemical plant,
   3. Refinery,
   4. Manufacturing
   5. Coatings
   6. Furniture manufacturing
   7. Jet Engine Repair and Maintenance
   8. Oil and Gas (exploration and production, natural gas plants, gathering lines, water and carbon dioxide floods, injection wells, well integrity)
   9. Pipelines (gas, oil, and carbon dioxide)
   10. Terminals (oil and refined product)
   11. Construction
   12. Real Estate Development
   13. Colleges and Universities
   14. Water Use
   15. Water Supply (wholesale and retail)
   16. Injection Wells (Hazardous, Nonhazardous, and Salt Water)
   17. Radioactive Materials (Use, Pipeline Inspection)
   18. Uranium in-situ mining
   19. Agriculture (farming and ranching)

 

The State of Texas Sued the State of New Mexico in US Supreme Court over Alleged Failure to Release Water to the RIo Grande River

The State of Texas has filed suit in the U.S. Supreme Court over allegatons that the State of New Mexioc is withdrawing or allowing others to withdraw more water than allowed from the Rio Grande River, and, therefore, less water is reaching the State of Texas for use here.  “It is unfortunate that we have had to resort to legal action, but negotiations with New Mexico have been unsuccessful, and Texas is not getting the water that it is allocated and legally entitled to,” said Texas Commission Environmental Quality Commissioner Carlos Rubinstein.

Because of New Mexico's ongoing litigation to avoid its water obligation, Texas decided that it felt compelled to act to protect the rights it believes it has to the water legally apportioned to it.

"The State of New Mexico is currently in active litigation in both state and federal courts in New Mexico in an attempt to circumvent the Rio Grande Compact and the operation by the United States of the Rio Grande Project," Rubinstein said.  "The complaint filed today by the State of Texas in the U.S. Supreme Court is not intended to adversely impact the State of New Mexico’s right to allocate its water resources, but is focused on protecting the rights of Texas to Rio Grande water under the 1938 Compact through the operation of the Rio Grande Project.  By ignoring the compact, New Mexico is already causing harm to water users in Texas, and it will only get worse in the future unless something is done now.”

"These illegal diversions of water in New Mexico are having an ongoing negative effect on the amount of water available for use by Texas farmers," said Pat Gordon, Rio Grande Compact Commissioner. "The city of El Paso also counts on Texas’ water allocation for half of its water supply. Our attempts to negotiate a resolution with the State of New Mexico were not successful and only resulted in New Mexico initiating very aggressive litigation aimed at capturing water that belongs to the Rio Grande Project and the State of Texas.  Our dispute is not with New Mexico farmers who are part of the Rio Grande Project. Texas had no choice but to take action against the State of New Mexico in the U.S. Supreme Court to protect its rights under the 1938 Compact."

 The argmuments of Texas in its complaint include the following main points:

•    Historically, water apportioned under the Rio Grande Compact has resulted in approximately 57 percent of the water supply below the Elephant Butte Reservoir being delivered to New Mexico, and 43 percent being delivered across the New Mexico-Texas state line for Texas.

•    The State of New Mexico has allowed a reduction of Texas’ water supplies and the apportionment of water it is entitled to under the Rio Grande Compact. New Mexico is illegally allowing diversions of both surface and underground water hydrologically connected to the Rio Grande downstream of Elephant Butte Reservoir.  These extractions of water through 2011 have amounted to tens of thousands, if not hundreds of thousands, of acre-feet annually.  The illegal diversion of this water is negatively impacting water flows in the river, taking water that is released for the Rio Grande Project beneficiaries, including the State of Texas.  Essentially, New Mexico is delivering water to Texas at Elephant Butte Reservoir and then re-diverting Texas’ water below the reservoir as it is being released to Texas.

•    Grave and irreparable injury has occurred and will be suffered in the future by Texas and its citizens unless relief is afforded by the court to prevent New Mexico from using and withholding water which Texas is entitled to, and which New Mexico is obligated to deliver, under the Rio Grande Compact and Rio Grande Project Act.

The drought in West and South Texas and New Mexico exacerbates a long-term shortage of water, and that drought does not appear to be ending any time soon.  Water in New Mexico and West and SouthTexas is a critical resource with the growth in population from immigration and the growth of the oil shale industry, with the draw of population and water demand.  Unfortunatley water demand is increasing, but supply is not. 

The Texas case against New Mexico is just one of many fights between states in the Western United States over water.  The outcome may be critical for both states and the people who live there and businesses that operate there.

Texas Moving Closer to Issuing Vapor Intrusion/Indoor Air Guidance

In recent advising and representation of clients on vapor intrusion/indoor air issues from soil and/or groundwater plumes containing chlorinated solvents or other volatile chemicals, a representative of the Texas Commission on Environmental Quality (TCEQ) advised us that the agency is moving forward with issuing guidance on vapor intrusion in the coming months.  How that comes out will have potential impact not only on industrial facilities, but on real estate transactions where light industry, gas stations, dry cleaners, and other current or historical uses may affect groundwater on-site or off-site.

In transactions I have been involved in, buyers often look to address potential vaport intrusion in terms of remediation, insurance, indemnities, and other provisions in sales contracts.  Lenders consider these issues and have to be convinced it will not cause liability to the borrower or cause issues with tenants and payments on leases.  Lenders are concerned with payment of loans and protectin of collateral value.  Vapor intrusion/indoor air has spawned lawsuits in some states.

In Texas, currently, the Texas Risk Reduction Program (TRRP) rules required notification of the TCEQ and persons exposed or who may be exposed, as soon as possible or within 60 days.  The rules do allow the use of Occupational Health and Safety Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH) levels for occupational exposure.  To use these levels a health and safety plan must be submitted and a certification it is being followed must be submitted to the TCEQ.  Currently, these levels rather than the very low Risk Based Exposure Levels for commercial and industrial sites may be used.

In other parts of the country, EPA regional offices and some states have adopted very low levels at least as screening levels that may be below the method detection limit for testing protocols for indoor air.  This makes management of indoor air and vapor intrusion difficult for some chemicals, particularly trichloroethylene.  These low levels are orders of magnitude below the OSHA and ACGIH levels, and appear to be below what is necessary to protect workers.

Fortunately, it appears the TCEQ is going to continue to allow worker standards developed by an agency or organisation with a long history of developing safe levels for workers.  This will allow a more rational approach to vapor intrusion and indoor air issues.  The need to follow and comment on TCEQ policy and guidance on vapor intrusion/indoor air is critical to a sound policy on worker protection under environmental remediation regulations in Texas.

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Poll Shows Slight Edge of Support by New Yorkers of Hydraulic Fracturing and Shale Gas Development

With all of the attacks on hydraulic fracturing heard in the news, and the recent proposal for potentially strict rules on hydraulic fracturing and shale gas drilling in New York, a recent poll shows a slight edge for support of shale gas development in New York.

The poll as reported by Reuters indicates 47% of those polled support shale gas development that uses hydraulic fracturing to complete the gas wells.  Those opposed to the process were at 42%.  The slight edge to support comes after sigificant criticism by the New York times and a temorary moratorium imposed the by state government. 

Recent announcements of planned regulation by the New York Department of Environmental Conservation.  Tne NYDEC plans to allow hydraulic fracturing, but with significant limitations. Hydraulic fracturing would not be permitted in watersheds that supply drinking water to the City of New York or the City of Syracuse. It would also be prohibited over primary aquifers and on state-owned lands.  Regulations governing the drilling where permitted may be fairly strict.

The support by a significant portion of the public may help in the argument for reasonable regulation of what is such a huge energy resource for the country and the State of New York.

 

 

Pace University Seeking to Fill Environmental Positions

Pace University School of Law is seeking to fill one position, titled, Assistant Dean of Environmental Programs and Professor of Law for Designated Project or Service (Assistant Dean) for its nationally ranked Center for Environmental Legal Studies (CELS).  This non-tenure track position offers the opportunity to direct one of the nation’s top Environmental Law Programs.  The Assistant Dean reports to the Vice Dean for Academic Affairs, and will be responsible for the overall management and administration of the Center.

 Working in conjunction with the environmental faculty, the Assistant Dean helps establish the overall direction for the Environmental Law Program and is responsible for developing new programs and projects and managing and coordinating the day-to-day undertakings of the Center.  Those responsibilities include organizing lectures, colloquia and our National Environmental Moot Court Competition, as well as coordinating programs with the Environmental Litigation Clinic, Pace Land Use Law Center, Pace Center for Climate and Energy Law, Brazil-American Institute for Law and Environment (BAILE), and Pace’s Public Interest Law Center.  The Assistant Dean also teaches in the program.  

The ideal candidate enjoys creating and maintaining partnerships and relationships with other law schools and educational institutions, bar and professional associations, governmental agencies, civic and community associations and the private sector.   We seek candidates with excellent administrative and management skills, in-depth knowledge of environmental law and the environmental legal community, and familiarity with academic institutions.  All applicants should have a J.D. degree.   Extensive legal and/or teaching experience in the area is a strong plus.

Pace is committed to achieving equal opportunity in all aspects of University life.  Applications are encouraged from people of color, gays and transgendered individuals, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of our school.

Salaries and benefits, including domestic partner benefits, are commensurate with experience and performance.  

 Pace University School of Law is located in suburban White Plains, New York, in Westchester County, approximately 15 miles north of New York City.  Pace’s reputation and strong financial aid and scholarship program attract extremely talented students from diverse backgrounds, from thirty-four states, and more than 15 countries.  The Law School’s primary commitment is to providing its students with the skills, knowledge, and values necessary to be effective and ethical lawyers as well as community leaders.  We offer the resources of a private, nationally-ranked university, tuition waivers for family members and an attractive benefits and compensation package.

You may send a resume and references to:

 Professor Leslie Yalof Garfield

Chair, Search Committee

Pace University School of Law

78 North Broadway

White Plains, N.Y. 10603

e-mail:  lgarfield@law.pace.edu

EPA Region 6 Reportedly Reached First Agreement with Company Holding a Disputed Texas Permit

Region 6 of the US Environmental Protection Agency (EPA) reportedly reached agreement with Flint Hills Resources' East Corpus Christi refinery owned by a subsidiary of  Koch Industries Inc.  The details of the arrangement were not known.  A series of companies are fighting the EPA approach, but some companies are seeking resolution of the uncertainty brought on by EPA challenging the flexible permits issued by the Texas Commission on Environmental Quality.